EXHIBIT 10.9
STENTOR, INC.
000 XXXXXX XXXXXXXXX
XXXXXXXX, XX 00000
June 27, 2003
Oran Muduroglu 0000
Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
RE: EMPLOYMENT AND CONSULTING AGREEMENT
Dear Oran:
This letter agreement (this "AGREEMENT") reflects the modified employment terms
under which Stentor, Inc. (the "COMPANY") and you have agreed to continue your
employment. Concurrent with the execution of this Agreement and as a material
inducement for the Company to enter into this Agreement you will enter into the
Release of Claims Agreement attached hereto as Exhibit A.
1. POSITION, DUTIES AND RESPONSIBILITIES.
(a) EMPLOYMENT POSITION. You will continue in your position as the
Chief Executive Officer ("CEO") reporting to the Company's Board of Directors
(the "BOARD") until the Company's new full-time CEO commences employment at
which time you shall serve in such other capacity or capacities as the Company
and you agree to from time to time. If the parties cannot agree with respect to
a change in your capacity or capacities, or if either party is dissatisfied with
a capacity upon which they had agreed and cannot agree to a subsequent change,
you shall serve as a consultant, as described below in Section 1(b). You will
work at the Company's Brisbane, California headquarters. The Company retains the
discretion to modify your position and duties from time to time without a
written modification of this Agreement, but if you do not agree to such
modification, you shall serve as a consultant pursuant to Section 1(b) below.
(b) CONSULTANT POSITION. Unless you and the Board agree otherwise,
upon the date that you or the Company determine, as set forth in Section 1(a),
that such parties are unable to agree on your employment duties, you will become
a consultant to the Company. As a consultant you will report to the Board and
perform such services as reasonably requested by the Board. During the period in
which you provide consulting services to the Company (the "CONSULTING PERIOD")
you will be subject to the provisions set forth on Schedule 1 attached hereto
and the terms and conditions of this Agreement.
Oran Muduroglu
June 27, 2003
Page 2
2. PARTICIPATION IN SEARCH FOR CEO. You acknowledge that the Board, in
its sole discretion, has decided to recruit a new CEO for the Company. You and
the Board agree that so long as you are employed by, or serving as a consultant
to, the Company and are receiving the compensation as provided in Section 3,
below, you shall participate in the recruitment and evaluation of CEO
candidates, and in the orderly transition of information and management duties
to the individual hired as the Company's new CEO.
3. COMPENSATION AND EMPLOYEE BENEFITS.
(a) BASE SALARY; CONSULTANT FEE.
(i) Your annual base salary will be Eighteen Thousand Seven
Hundred Fifty Dollars ($18,750) per month (Two Hundred Twenty Five Thousand
Dollars ($225,000) annualized), less standard payroll deductions and required
withholdings, paid according to the Company's regular payroll schedule and
procedures. You will be considered for increases in base salary, as determined
in the sole discretion of the Board.
(ii) If you become a consultant to the Company, as provided in
Section 1, you will be paid a monthly fee of Eighteen Thousand Seven Hundred
Fifty Dollars ($18,750) (the "MONTHLY CONSULTING FEE"), less any tax
withholdings required by law, through the second anniversary of the date of this
Agreement.
(b) STOCK OPTION GRANT. Subject to Board approval, the Company will
grant you an option to purchase Ninety Six Thousand (96,000) shares of the
Company's common stock (the "SPECIAL OPTION"), pursuant to the Company's 2001
Incentive Stock Plan (the "PLAN"). The Special Option will be subject to the
terms and conditions of the Plan and your stock option agreement and stock
option grant notice. Fifty percent of the Special Option will vest on the second
anniversary of the date of this Agreement, and 1/48th of the Special Option
shall vest on each monthly anniversary thereafter. The Special Option whether
vested or unvested shall immediately terminate and be rendered void in the event
you:
(i) breach your obligations under your Proprietary Information
Agreement or this Agreement, including without limitation the obligations set
forth in Section 4;
(ii) directly or indirectly, whether as an officer, director,
employee, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any other
person, corporation, firm, partnership, or other entity which develops,
licenses, distributes and/or markets software and/or systems for the management
of digital medical images, which could be either stand-alone systems or
integrated into broader systems, including, but not limited to, Picture
Archiving and Communications Systems, image display systems, image distribution
systems and/or image archiving systems, anywhere in the world, provided,
however, that anything above to the contrary notwithstanding, you may (x) own,
as a
Oran Muduroglu
June 27, 2003
Page 3
passive investor, securities of any entity, so long as your direct holdings in
any one such corporation do not in the aggregate constitute more than one
percent (1%) of the voting stock of such corporation, and (y) work for an entity
that engages in the prohibited activity set forth above if: (1) you work in a
separate and distinct business department, division or unit that does not
directly or indirectly engage in such prohibited activity; (2) you do not
provide services for the benefit of or support the business department, division
or unit that engages in such prohibited activity; and (3) you do not directly or
indirectly provide information on the Company's business to the business
department, division or unit that engages in such prohibited activity; or
(iii) are terminated from your employment or consulting
position with Cause (as defined below) or if you terminate your employment
without Good Reason (as defined below).
(c) EMPLOYEE BENEFITS. As an employee, you shall remain eligible for
all benefits of the Company, including paid time off accrual and health and
disability benefits, under the terms and conditions of the standard Company
benefits plans which may be in effect from time to time and provided by the
Company to its senior executive level employees generally. Details about these
benefits are set forth in the summary plan descriptions and other materials
available for your review. The Company may, in its discretion, modify your
compensation and benefits from time to time, as it deems necessary, and the
Company may, in its discretion, change the level of benefits it provides to
employees from time to time, as it deems advisable for the workforce.
(d) CONSULTING BENEFITS. During the Consulting Period you shall be
entitled to reimbursement for COBRA premiums in accordance with, and subject to,
the terms and conditions of Section 7 below.
4. OTHER ACTIVITIES DURING EMPLOYMENT AND THE CONSULTING PERIOD;
NON-SOLICITATION.
(a) Except with the prior written consent of the Board, you will not
during your employment undertake or engage in any other employment, occupation
or business enterprise. You may engage in civic and not-for-profit activities so
long as such activities do not materially interfere with the performance of your
job duties. For clarification purposes, the restrictions of this Section 4(a) do
not apply to you during the Consulting Period.
(b) Except as permitted by Section 4(c) below, during your
employment and the Consulting Period you agree not to acquire, assume or
participate in, directly or indirectly, any position, investment or interest
known by you to be adverse or antagonistic to the Company, or its business or
prospects, financial or otherwise.
(c) During the term of your employment by the Company and during the
Consulting Period, except on behalf of the Company, you will not directly or
indirectly, whether
Oran Muduroglu
June 27, 2003
Page 4
as an officer, director, employee, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage in, become
financially interested in, be employed by or have any business connection with
any other person, corporation, firm, partnership, or other entity which
develops, licenses, distributes and/or markets software and/or systems for the
management of digital medical images, which could be either stand-alone systems
or integrated into broader systems, including, but not limited to, Picture
Archiving and Communications Systems, image display systems, image distribution
systems and/or image archiving systems, anywhere in the world, provided,
however, that anything above to the contrary notwithstanding, you may (x) own,
as a passive investor, securities of any entity, so long as your direct holdings
in any one such corporation do not in the aggregate constitute more than one
percent (1%) of the voting stock of such corporation, and (y) work for an entity
that engages in the prohibited activity set forth above if: (1) you work in a
separate and distinct business department, division or unit that does not
directly or indirectly engage in such prohibited activity; (2) you do not
provide services for the benefit of or support the business department, division
or unit that engages in such prohibited activity; and (3) you do not directly or
indirectly provide information on the Company's business to the business
department, division or unit that engages in such prohibited activity.
(d) You acknowledge that because of your position in the Company,
you will have access to material intellectual property and confidential
information. During the term of your employment by the Company and the
Consulting Period, and for one (1) year after the later of (x) the termination
of your employment or (y) the termination of your services to the Company as a
consultant (as provided in Section 1) in addition to your other obligations
hereunder or under the Proprietary Information Agreement (as defined below), you
shall not, for yourself or any third party, directly or indirectly:
(i) divert or attempt to divert from the Company any business
of any kind, including without limitation the solicitation of or interference
with any of its customers, clients, members, business partners or suppliers, or
(ii) solicit or otherwise induce any person employed by the
Company to terminate his or her employment.
5. COMPANY POLICIES; PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT.
AS A Company employee and as a consultant to the Company, you will be expected
to abide by Company rules and policies. As a further condition of your continued
employment, you agree to continue to abide by your obligations under that
certain Employee Proprietary Information and Inventions Agreement (PROPRIETARY
INFORMATION AGREEMENT") between you and the Company, signed by you on November
1, 1998. During the term of the Consulting Period, the Proprietary Information
Agreement shall be deemed amended so that all references to "employee" and
"employment" are deemed to also include the terms "consultant" and "Consulting
Period" and so that all of the terms and conditions of the Proprietary
Information Agreement fully apply to you
Oran Muduroglu
June 27, 2003
Page 5
as a consultant during the Consulting Period, provided however, Section 2.7 of
the Proprietary Information Agreement regarding works made for hire, shall be
inapplicable to you during the Consulting Period. For clarification purposes,
the invention assignment provisions in Section 2 shall apply to any Inventions
(as defined in the Proprietary Information Agreement) you create during the
Consulting Period and the 6 month period after termination of employment in
Section 2.5 would also refer to the 6 month period after the Consulting Period
ends.
6. AT-WILL EMPLOYMENT RELATIONSHIP; OTHER TERMINATIONS.
(a) AT-WILL EMPLOYMENT. Your employment with the Company shall be
"at will" at all times. Either you or the Company may terminate the employment
relationship at any time, with or without Cause (as defined below) or advance
notice. Upon and after such termination, all obligations of the Company under
this Agreement shall cease, unless the Company terminates you without Cause or
you terminate your employment with Good Reason (as defined below), in which case
the Company will provide you with the Termination Benefits as described in
Section 7.
(b) TERMINATION OF CONSULTING RELATIONSHIP. Your engagement as a
consultant to the Company under Section 1, may be terminated at any time, with
or without Cause or advance notice. Upon and after such termination, all
obligations of the Company under this Agreement shall cease, unless the Company
terminates your consulting arrangement without Cause (as defined below), in
which case the Company will provide you with the Termination Benefits as
described in Section 7.
(c) DEATH. Your employment or consulting arrangement shall terminate
automatically upon your death. The Company shall pay to your beneficiaries or
estate, as appropriate, any compensation then due and owing. Thereafter all
obligations of the Company under this Agreement shall cease. Nothing in this
Section shall affect any entitlement of your heirs or devisees to the benefits
of any life insurance plan or other applicable benefits.
(d) DISABILITY. If you become eligible for the Company's long term
disability benefits or if, in the sole opinion of the Company, you are unable to
carry out the responsibilities and functions of the position held by you by
reason of any physical or mental impairment for more than ninety (90)
consecutive days or more than one hundred and twenty days in any twelve-month
period, then, to the extent permitted by law, the Company may terminate your
employment. If you are terminated pursuant to this Section 6(d), you will be
provided with the Termination Benefits (as defined below), provided that you
comply with the terms and conditions related to the receipt of such benefits,
and provided further, that the amount of any monetary payments to you shall be
reduced by any disability payments you receive under any disability plan of the
Company. Nothing in this Section shall affect your rights under any disability
plan in which you are a participant.
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June 27, 2003
Page 6
7. TERMINATION BENEFITS. If the Company (i) terminates your employment
without Cause at any time (other than as a result of being converted to a
consultant position under Section 1), or (ii) terminates your consulting
arrangement (as provided in Section 1) without Cause on or prior to the second
anniversary of the date of this Agreement, or (iii) if you terminate your
employment for Good Reason (as defined below) at any time, in each case as
determined in good faith by the Board, provided that you execute and deliver the
Release Agreement, attached hereto as Exhibit B (the "RELEASE AGREEMENT") in
accordance with Section 7(d) and such Release Agreement is not revoked, you will
receive the following as your sole termination benefits (collectively, the
"TERMINATION BENEFITS") through the end of the Termination Period (as defined
below):
(a) SALARY/MONTHLY CONSULTING FEE CONTINUATION. Through the end of
the Termination Period, you will continue to receive payments (i) equal to your
base salary, if you were an employee at the time of your termination, or (ii)
equal to the Monthly Consulting Fee, if you were a consultant at the time of
your termination, as set forth in Section 3(a), on the same payment schedule, in
effect as of the effective date of your termination, and subject to standard
payroll deductions and required withholdings, if any.
(b) COBRA PREMIUMS. If you timely elect to continue your Company-
provided group health insurance coverage pursuant to the federal and California
state COBRA law, the Company will reimburse you for the cost of such COBRA
premiums so that you may continue health insurance coverage, at the same level
you maintain as of the employment termination date or at the time you become a
consultant under Section 1(b), through the end of the Termination Period, or
until such time as you qualify for health insurance benefits through a new
employer, whichever occurs first, as follows: (i) reimbursement for 100% of your
COBRA premiums and (ii) reimbursement for 60% of your eligible dependents' COBRA
premiums.
(c) STOCK OPTION. If the Special Option is granted pursuant to
Section 3(b), it will continue to vest on the same schedule and subject to the
same conditions as set forth in Section 3(b) through the end of the Termination
Period, provided that you execute and deliver the Release Agreement as provided
in Section 7(d), and thereafter the Special Option will cease vesting. The
option agreement relating to the Special Option shall provide (i) that it may be
exercised for ninety (90) days following the end of the Termination Period and
(ii) that it shall continue to vest as set forth in this Section 7(c).
(d) RELEASE AGREEMENT. As a condition of and prior to the Company's
provision of any of the Termination Benefits set forth in Sections 7(a) through
(c), you must execute, deliver and make effective the Release Agreement
(attached as Exhibit B) on the later of (i) the date your employment is
terminated and you are not converted to a consultant (as provided in Section 1)
or (ii) the date of the termination of your consulting arrangement (as provided
in Section 1). In the event you revoke any part of or breach the Release
Agreement, the Company will not provide any of the Termination Benefits to you.
Oran Muduroglu
June 27, 2003
Page 7
(e) DEFINITION OF CAUSE. For purposes of this Agreement, "CAUSE"
means the occurrence of any one or more of the following: (i) your conviction
of, or plea of guilty or no contest with respect to, any felony or crime
involving fraud, dishonesty, physical harm or moral turpitude; (ii) your
participation in a fraud or act of dishonesty against the Company that results
in material harm to the business of the Company; (iii) your intentional,
material breach of any contract or agreement between you and the Company,
including but not limited to this Agreement and your Proprietary Information
Agreement, or your breach of any statutory duty that you owe to the Company, but
only if you do not correct such breach within thirty (30) days after written
notice thereof has been provided to you; (iv) your commission of an act of
unlawful harassment or discrimination; (v) your willful refusal to implement or
follow a lawful policy or directive of the Company or the Board, but only if you
do not correct such action within thirty (30) days after written notice thereof
has been provided to you, or (vi) a demonstrated and continued pattern of your
substantial nonperformance of employment or consulting duties (other than due to
your illness or because the requested conduct would subject you to criminal
penalties or would violate applicable federal, state or local law, ordinance or
regulation), occurring after the date of this Agreement, as determined by the
Board in good faith, but only if you do not correct such nonperformance within
thirty (30) days after a written notice has been provided to you that identifies
your acts of substantial nonperformance of your duties, and, provided further,
that the Board's determination of substantial nonperformance of your employment
or consulting duties shall not be based on any of your acts or omissions as an
employee of the Company prior to the date of this Agreement.
(f) DEFINITION OF GOOD REASON. For purposes of this Agreement, "GOOD
REASON" means, without your express written consent (i) a material reduction by
the Company of your base salary as in effect immediately prior to such reduction
(other than as part of a proportional reduction for all executives); (ii) a
requirement by the Board that you perform an act that would subject you to
criminal penalties or would violate applicable federal, state or local law,
ordinance or regulations, or (iii) your relocation to a facility or a location
more than fifty (50) miles from your current workplace; provided that for Good
Reason to exist under subsections (i) through (iii) above, you must give the
Company written notice of any of the events described in this Section 7(f)
giving rise to Good Reason and the Company must fail to correct such events
within thirty (30) days of the date such notice is given.
(g) DEFINITION OF TERMINATION PERIOD. For purposes of this
Agreement, the "TERMINATION PERIOD" is defined as the period from the date your
employment or consulting arrangement is terminated through the two-year
anniversary of the date you sign this Agreement; provided however, if (i) the
Consulting Period is terminated without Cause after the eighteen (18) month
anniversary of the date you sign this Agreement and before the two-year
anniversary of the date you sign this Agreement, or (ii) your employment is
terminated without Cause or for Good Reason at any time after the eighteen (18)
month anniversary of the date you sign this Agreement, the Termination Period
shall be extended so that you will receive a minimum of six (6) months of
Termination Benefits from the date of such termination.
Oran Muduroglu
June 27, 2003
Page 8
(h) AGREEMENT TO ACT AS CONSULTANT. As a condition of receiving the
Termination Benefits, during the Termination Period, you promise to make
yourself reasonably available to assist the Company with the transition of your
responsibilities and to consult with the Company on matters related to your
responsibilities during your employment or the Consulting Period. The Company's
requests, if any, under this Section 7(h) will be reasonable and will take into
account your work schedule, if any, and other time commitments, so as not to
interfere with your ability to maintain subsequent employment during the
Termination Period.
8. TERMINATION OF TERMINATION BENEFITS. The Company's obligations, and
your rights to Termination Benefits pursuant to Sections 7(a) through (c) shall
cease and be rendered a nullity immediately in the event that during the
Termination Period you:
(a) breach your obligations under your Proprietary Information
Agreement or this Agreement, including without limitation the obligations set
forth in Section 4; or
(b) directly or indirectly, whether as an officer, director,
employee, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any
stand-alone business, or any business residing within a corporation or any other
entity, which develops, licenses, distributes and/or markets software and/or
systems for the management of digital medical images, which could be either
stand-alone systems or integrated into broader systems, including, but not
limited to, Picture Archiving and Communications Systems, image display systems,
image distribution systems and/or image archiving systems, anywhere in the
world; provided, however, that anything above to the contrary notwithstanding,
you may you may (x) own, as a passive investor, securities of any entity, so
long as your direct holdings in any one such corporation do not in the aggregate
constitute more than one percent (1%) of the voting stock of such corporation,
and (y) work for an entity that engages in the prohibited activity set forth
above if: (1) you work in a separate and distinct business department, division
or unit that does not directly or indirectly engage in such prohibited activity;
(2) you do not provide services for the benefit of or support the business
department, division or unit that engages in such prohibited activity; and (3)
you do not directly or indirectly provide information on the Company's business
to the business department, division or unit that engages in such prohibited
activity.
9. TERMINATION OBLIGATIONS.
(a) RESIGNATION AND COOPERATION. Upon termination of your
employment, you shall be deemed to have resigned from all offices and
directorships then held with the Company. Following any termination of
employment or your consulting arrangement, you shall cooperate with the Company
in the winding up of pending work on behalf of the Company and the orderly
transfer of work to other employees. You shall also cooperate with the Company
in
Oran Muduroglu
June 27, 2003
Page 9
the defense of any action brought by any third party against the Company that
relates to your employment by the Company.
(b) CONTINUING OBLIGATIONS. You acknowledge, understand and agree
that your obligations under Section 4(d) (Non-Solicitation), Section 8
(Termination of Benefits), Section 9 (Termination Obligations) and Section 10
(Arbitration) shall survive the termination of your employment for any reason
and the termination of this Agreement.
10. ARBITRATION. Concurrent with the execution and delivery of this
Agreement, you shall execute and deliver, and be bound by, the Arbitration
Agreement which is attached as Exhibit C.
11. ASSIGNMENT; BINDING EFFECT.
(a) ASSIGNMENT. Your performance hereunder is personal, and you
agree that you shall have no right to assign and shall not assign or purport to
assign any rights or obligations under this Agreement. This Agreement may be
assigned or transferred by the Company; and nothing in this Agreement shall
prevent the consolidation, merger or sale of the Company or a sale of any or all
or substantially all of its assets.
(b) BINDING EFFECT. Subject to the foregoing restriction on
assignment by you, this Agreement shall inure to the benefit of and be binding
upon each of the parties; the affiliates, officers, directors, agents,
successors and assigns of the Company; and your heirs, devisees, spouse, legal
representatives and successors.
12. NOTICES. All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered: (a) by hand; (b) by a nationally recognized overnight courier
service; or (c) by United States first class registered or certified mail,
return receipt requested, to the principal address of the other party, as set
forth below. The date of notice shall be deemed to be the earlier of (i) actual
receipt of notice by any permitted means, or (ii) five business days following
dispatch by overnight delivery service or the United States Mail. You shall be
obligated to notify the Company in writing of any change in your address. Notice
of change of address shall be effective only when done in accordance with this
paragraph.
Company's notice address:
Stentor, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Your notice address:
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June 27, 2003
Page 10
Oran Muduroglu
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
13. COMPLETE AGREEMENT. This Agreement, including Exhibits A, B and C
and Schedule 1, and your Proprietary Information Agreement, constitute the
complete, final and exclusive embodiment of your employment agreement with the
Company. In entering into this Agreement, neither party is relying upon any
promise or representation, written or oral, on any subject concerning the
Company or concerning your employment with the Company other than those
expressly contained or referenced as applicable herein. This Agreement
supersedes that certain offer letter dated November 5, 1998 from Caduceus
Capital Partners outlining the terms of your employment with the Company and,
except as stated herein, any other agreements or promises made to you by anyone,
whether oral or written. This Agreement may not be amended or modified except by
a written instrument signed by you and a duly authorized member of the Board.
This Agreement will be construed and interpreted in accordance with the laws of
the State of California. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. Any invalid or unenforceable provision shall be
modified so as to render valid and enforceable in a manner consistent with the
intent of the parties insofar as possible. This Agreement may be delivered by
telefacsimile and may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same agreement.
[Signature page follows]
Oran Muduroglu
June 27, 2003
Page 11
14. ACKNOWLEDGEMENT. YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY
TO CONSULT LEGAL COUNSEL CONCERNING THIS AGREEMENT, THAT YOU HAVE READ AND
UNDERSTANDS THIS AGREEMENT, THAT YOU ARE FULLY AWARE OF ITS LEGAL EFFECT, AND
THAT YOU HAVE ENTERED INTO IT FREELY BASED ON YOUR OWN JUDGMENT AND NOT ON ANY
REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
Sincerely,
STENTOR, INC.
BY: /s/ XXXXXX XXXX
------------------------------------
XXXXXX XXXX
CHAIRMAN OF THE BOARD OF DIRECTORS
ACCEPTED AND AGREED:
/s/ ORAN MUDUROGLU
----------------------------
ORAN MUDUROGLU
DATE: JUNE 27, 2003
EXHIBIT A
RELEASE OF CLAIMS AGREEMENT
CONFIDENTIAL
STENTOR, INC.
RELEASE OF CLAIMS AGREEMENT
June 27, 2003
Oran Muduroglu
Stentor, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
RE: RELEASE OF CLAIMS AGREEMENT FROM ORAN MUDUROGLU
Dear Oran:
You have alleged that Stentor, Inc. (the "COMPANY") and certain of its
current and former directors have breached their fiduciary responsibilities in
connection with the temporary deadlock on the Board of Directors between
November 2002 and February 2003 on certain matters (including but not limited to
your earlier allegations relating to inappropriate stock distribution, efforts
to initiate the process of replacing you as CEO of the Company, and the proposed
removal of Xxxx Xxxxxx as a director) (the "DISPUTE") and intended to take
wrongful action against you because of these allegations that may provide you
with a basis to assert employment claims or other claims against such parties,
including, but not limited to breach of fiduciary duty, retaliation, wrongful
disparagement, defamation, libel and wrongful infliction of emotional distress
(the "CLAIMS"). Without admitting any wrongdoing by the Company, any of its
directors, or any of the other Released Parties and in order to avoid the
expense of litigation relating to possible employment and other claims you may
have against the Company related to the Dispute, you have voluntarily agreed to
provide the Company and its directors and each of the other Released Parties
with this release of claims (this "RELEASE") in exchange for the consideration
set forth in Section 1 below. If the terms of this Release are acceptable,
please sign where indicated below.
1. In consideration for the promises made in this Release, concurrent
with the execution of this Release, you and the Company shall enter into an
employment letter agreement, dated as of the date hereof (the "EMPLOYMENT
AGREEMENT") that will govern your service to the Company as an employee or a
consultant and the Company shall provide you with a release of certain claims it
has against you (the "COMPANY RELEASE"). You acknowledge and agree that the
Employment Agreement shall provide you with compensation and benefits that you
would not be entitled to otherwise and is being provided to you to, among other
things, resolve the Claims.
2. You acknowledge and agree that you do not have pending against the
Company or any employee, agent, official, or director of the Company, any claim,
charge, or action in or with any federal, state, or local court or
administrative agency of any kind or nature whatsoever, including, without
limitation, any claim, charge, or action related or in any manner incidental to
your employment, membership on the Board or your shareholder rights, fiduciary
obligations of
1
the Board and other shareholders to you or the Company, and any action of any of
the Company's employees, officers, agents or shareholders.
3. In return for the consideration described above, you, in your
capacity as an employee, officer, director, stockholder or otherwise, and your
representatives, hereby release the Company and its parents, subsidiaries,
successors, predecessors, stockholders and affiliates, its and their current and
former directors (whether acting individually or collectively, as members of the
full Board, any of its committees or otherwise), officers and employees, and the
current and former partners, members, managers, agents, attorneys, predecessors,
insurers, affiliates and assigns of each of the foregoing (the "RELEASED
PARTIES"), from any and all claims, liabilities and obligations, both known and
unknown, including, but not limited to, claims for breach of fiduciary duties,
employment claims, breach of contract, disparagement, defamation, libel,
wrongful infliction of emotional distress, and retaliation in response to your
allegations of breach of fiduciary duties by the directors of the Company, that
arise out of or are in any way related to the Dispute ("RELEASED CLAIMS").
Notwithstanding the release in the preceding sentence, you shall not hereby
surrender any right you may have to indemnification by the Company pursuant to
the bylaws of the Company or applicable law.
4. You further agree that because this release specifically covers
known and unknown claims, you waive your rights under Section 1542 of the
California Civil Code, which states as follows:
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 TO THE DEBTOR.
5. You also agree not to initiate or cause to be initiated against any
of the Released Parties any lawsuit, compliance review, administrative claim,
investigation or proceedings of any kind which pertains in any manner to the
Released Claims; provided that notwithstanding the foregoing you may conduct a
compliance review or investigation on behalf of the Company to fulfill your
fiduciary duties as director of the Company.
6. You further agree to maintain this Release and its contents in the
strictest confidence and agree that you will not disclose the terms of this
Release to any third party without the prior written consent of the Company,
unless otherwise required by law. Notwithstanding the foregoing, you may
disclose the terms of this Release to your spouse to legal, financial, and tax
advisors.
7. You and the Company further agree that any and all disputes arising
out of the terms, interpretation, application, or alleged breach of this Release
shall be subject to the Arbitration Agreement between you and the Company, dated
as of the date hereof.
8. You and the Company also agree that this letter, the Company Release
and the Employment Agreement, contains all of our agreements and understandings
with respect to the subject matter of this Release and may not be contradicted
by evidence of any prior or contemporaneous agreement, except to the extent that
the provisions of any such agreement have
2
been expressly referred to in this Release as having continued effect. It is
agreed that this Release shall be governed by the laws of the State of
California applicable to contracts between residents of such state made and to
be performed entirely within such state, without regard to the conflict of laws
principles of any jurisdiction. If any provision of this Release or the
application thereof to any person, place, or circumstance shall be held by a
court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Release and such provision as applied to other person, places,
and circumstances shall remain in full force and effect unless the enforcement
of such remainder would be inequitable.
9. Each of the Released Parties is intended to be, and shall be, an
express third-party beneficiary of this Release, entitled to enforce the same in
his, her or its own right, and no provision of this Release which benefits any
of the Released Parties in any capacity shall be amended, withdrawn, waived,
rescinded, cancelled, reformed, restated, superseded, replaced, or otherwise
modified in any manner adverse to such Released Party without such Released
Party's advance express written consent, to be given or withheld in such
Released Party's sole discretion.
10. Finally, by your signature below, you acknowledge each of the
following: (a) that you have read this Release or have been afforded every
opportunity to do so; (b) that you are fully aware of this Release's contents
and legal effect; and (c) that you have chosen to enter into this Release
freely, without coercion and based upon your own judgment and not in reliance
upon any promises made by the Company other than those contained in this
Release.
Sincerely,
/s/ Xxxxxx Xxxx
-----------------
Stentor, Inc.
Xxxxxx Xxxx
Chairman of the Board of Directors
I have read and understand this Release and agree to be bound by its terms
and conditions.
/s/ Oran Muduroglu Date: June 27, 2003
--------------------------------
Oran Muduroglu
3
EXHIBIT B
RELEASE AGREEMENT
(TO BE SIGNED ON OR AFTER YOUR TERMINATION OF EMPLOYMENT OR THE CONSULTING
ARRANGEMENT)
I, Oran Muduroglu, understand that my [employment / engagement as a consultant]
with Stentor, Inc. (the "COMPANY") terminated effective _______________, 200___
(the "SEPARATION DATE"). The Company has agreed that if I choose to sign, and do
not revoke any part of, this Release Agreement ("Release"), upon the Effective
Date of this Release, the Company will pay me certain termination benefits
pursuant to Section 7 of the letter agreement, dated May ___, 2003, between
myself and the Company (the "AGREEMENT") to which this Release is attached. I
understand that I am not entitled to such benefits unless I sign this Release
and return it to the Company and do not revoke this Release on or prior to the
Effective Date (as defined below). I understand that, regardless of whether I
sign this Release, the Company will pay me all of my [accrued salary and paid
time off] [consulting fees] through the Separation Date, to which I am entitled
by law.
In consideration for the termination benefits I am receiving under the
Agreement, as described therein, I hereby generally and completely release the
Company and its parents, subsidiaries, successors, predecessors and affiliates,
and its and their directors, officers, employees, shareholders, agents,
attorneys, predecessors, insurers, affiliates and assigns, from any and all
claims, liabilities and obligations, both known and unknown, that arise out of
or are in any way related to events, acts, conduct, or omissions occurring at
any time prior to and including the date I sign this Release. This general
release includes, but is not limited to: (a) all claims arising out of or in any
way related to my employment with the Company or the termination of that
employment; (b) all claims related to my compensation or benefits, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (c) all claims for breach of contract, wrongful termination, and
breach of the implied covenant of good faith and fair dealing; (d) all tort
claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; (e) all claims related to my service as
a consultant and the termination of that service and (f) all federal, state, and
local statutory claims, including claims for discrimination, harassment,
retaliation, attorneys' fees, or other claims arising under the federal Civil
Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of
1990 (as amended), the California Family Rights Act, and the California Fair
Employment and Housing Act (as amended). Notwithstanding the release in the
preceding sentence, I shall not hereby surrender any right I may have to
indemnification by the Company pursuant to the bylaws of the Company or
applicable law.
I further acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under the federal Age Discrimination in Employment Act (as
amended) ("ADEA") and 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 date I sign this Release; (b) I
have been advised hereby that I have the right to consult with an attorney prior
to signing this Release; (c) I
have twenty-one (21) days to consider this Release (although I may choose to
voluntarily sign it before the end of the consideration period); (d) I have
seven (7) days after I sign this Release to revoke it; and (e) this Release will
not be effective until the date upon which the revocation period has expired,
which will be the eighth day after I sign this Release, provided that I have
returned this Release to the Company by that time ("EFFECTIVE DATE").
In releasing claims unknown to me at present, I am waiving all rights and
benefits under Section 1542 of the California Civil Code, and any law or legal
principle of similar effect in any jurisdiction:
"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."
I ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS RELEASE AS STATED ABOVE:
________________________________ ___________________________________
Oran Muduroglu Date
Accepted by:
STENTOR, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT C
ARBITRATION AGREEMENT
STENTOR, INC.
ARBITRATION AGREEMENT
This Arbitration Agreement (the "AGREEMENT"), dated as of June 27, 2003,
is between Stentor, Inc., a Delaware corporation (the "COMPANY") and Oran
Muduroglu, an individual ("EMPLOYEE").
Employee and Company hereby agree that, to the fullest extent permitted by
law, any and all claims or controversies between them (or between Employee and
any present or former officer, director, agent, or employee of the Company or
any parent, subsidiary, or other entity affiliated with the Company) relating in
any manner to the employment or the termination of employment of Employee shall
be resolved by final and binding arbitration. Except as specifically provided
herein, any arbitration proceeding shall be conducted in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association (the "AAA RULES").
Claims subject to arbitration shall include, without limitation: contract
claims, tort claims, claims relating to compensation and stock options, as well
as claims based on any federal, state, or local law, statute, or regulation,
including but not limited to any claims arising under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and the California Fair Employment and Housing Act. However,
claims for unemployment benefits, workers' compensation claims, and claims under
the National Labor Relations Act shall not be subject to arbitration.
A neutral and impartial arbitrator shall be chosen by mutual agreement of
the parties; however, if the parties are unable to agree upon an arbitrator
within a reasonable period of time, then a neutral and impartial arbitrator
shall be appointed in accordance with the arbitrator nomination and selection
procedure set forth in the AAA Rules. The arbitrator shall prepare a written
decision containing the essential findings and conclusions on which the award is
based so as to ensure meaningful judicial review of the decision. The arbitrator
shall apply the same substantive law, with the same statutes of limitations and
same remedies, that would apply if the claims were brought in a court of law.
The arbitrator shall have the authority to rule on a motion to dismiss and/or
summary judgment by either party, and the arbitrator shall apply the standards
governing such motions under the California Code of Civil Procedure.
Either the Company or Employee may bring an action in court to compel
arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit of claim in any way
related to any arbitrable claim, including without limitation any claim as to
the making, existence, validity, or enforceability of the agreement to
arbitrate. Nothing in this Agreement, however, precludes a party from filing an
administrative charge before an agency that has jurisdiction over an arbitrable
claim. Moreover, either party may seek provisional relief pursuant to Section
1281.8 of the California Code of Civil Procedure in a court of competent
jurisdiction for any claim or controversy arising out of or related to the
unauthorized use, disclosure, or misappropriation of the confidential and/or
proprietary information of either party.
1
All arbitration hearings under this Agreement shall be conducted in San
Francisco, California, unless otherwise agreed by the parties. The arbitration
provisions of this Arbitration Agreement shall be governed by the Federal
Arbitration Act. In all other respects, this Arbitration Agreement shall be
construed in accordance with the laws of the State of California, without
reference to conflicts of law principles.
Each party shall pay its own costs and attorney's fees, unless a party
prevails on a statutory claim, and the statute provides that the prevailing
party is entitled to payment of its attorneys' fees. In that case, the
arbitrator may award reasonable attorneys' fees and costs to the prevailing
party as provided by law. The costs and fees of the arbitrator shall be paid by
the Company.
This Agreement does not alter Employee's at-will employment status.
Accordingly, Employee understands that the Company may terminate Employee's
employment, as well as discipline or demote Employee, at any time, with or
without prior notice, and with or without cause. The parties also understand
that Employee is free to leave the Company at any time and for any reason, with
or without cause and with or without advance notice.
If any provision of this Agreement shall be held by a court or the
arbitrator to be invalid, unenforceable, or void, such provision shall be
enforced to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. The parties' obligations under
this Agreement shall survive the termination of Employee's employment with the
Company and the expiration of this Agreement.
The Company and Employee understand and agree that this Agreement contains
a full and complete statement of any agreements and understandings regarding
resolution of disputes between the parties, and the parties agree that this
Agreement supersedes all previous agreements, whether written or oral, express
or implied, relating to the subjects covered in this agreement. The parties also
agree that the terms of this Agreement cannot be revoked or modified except in a
written document signed by both Employee and an officer of the Company.
THE PARTIES ALSO UNDERSTAND AND AGREE THAT THIS AGREEMENT CONSTITUTES A
WAIVER OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES COVERED
BY THIS AGREEMENT. THE PARTIES AGREE THAT NONE OF THOSE CLAIMS OR CONTROVERSIES
SHALL BE RESOLVED BY A JURY TRIAL.
[Signature page follows]
2
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY
TO DISCUSS THIS AGREEMENT WITH THEIR LEGAL COUNSEL AND HAVE AVAILED THEMSELVES
OF THAT OPPORTUNITY TO THE EXTENT THEY WISH TO DO SO.
IN WITNESS WHEREOF, the parties have duly execute this Arbitration
Agreement as of the date first written above.
STENTOR, INC. EMPLOYEE
By: /s/ Xxxxxx Xxxx By: /s/ Oran Muduroglu
----------------------------- ---------------------------
Xxxxxx Xxxx Print Name: Oran Muduroglu
Chairman of the Board of Directors
3
SCHEDULE 1
ADDITIONAL CONSULTING TERMS
FOR ORAN MUDUROGLU
In addition to the terms and conditions in this Agreement, to which this
schedule is attached, governing your service as a consultant, during the
Consulting Period the Company and you agree to the following:
1. CONSULTING OBLIGATION. You acknowledge and agree that, until the earlier of
the first anniversary of this Agreement or six months from the date you commence
the Consulting Period, you shall be expected to devote a minimum of ten (10)
hours a week to perform the following consulting services as may be reasonably
requested by the Board or the Company: assistance necessary to facilitate a
smooth transition of CEO responsibilities, aid the CEO in the CEO's
understanding of the Company's business, and such other duties which are
commensurate with the responsibilities of a CEO. You further agree that until
the earlier of the first anniversary of this Agreement or six months from the
date you commence the Consulting Period, such consulting services may be
required on a full-time basis, from time to time, as reasonably requested by the
Board; thereafter and until the second anniversary of the date of this Agreement
you shall make yourself reasonably available to assist the Company with the
transition of your responsibilities and to consult with the Company on matters
related to your responsibilities during your employment, so long as the
Company's requests for such assistance are reasonable, taking into account your
work schedule and other time commitments, so as not to interfere with your
ability to maintain subsequent employment during the remainder of the Consulting
Period.
2. EXPENSES. The Company agrees to reimburse you for all expenses reasonably
incurred in the performance of the your services as a consultant upon production
of supporting receipts and documentation.
3. RELATIONSHIP OF THE PARTIES. As a consultant, during the Consulting Period,
you shall be, an independent contractor. In no circumstance shall you look to
the Company as your employer, partner, agent, or principal. Except as provided
in this Agreement, you shall not be entitled to any benefits accorded to the
Company's employees, including workers' compensation, disability insurance,
retirement plans, or vacation or sick pay. Your exclusion from benefit programs
maintained by the Company is a material component of the terms of compensation
negotiated by the parties, and is not premised on your status as a non-employee
with respect to Company. To the extent that you may become eligible for any
benefit programs maintained by the Company (regardless of the timing of or
reason for eligibility), you hereby waive your right to participate in the
programs. Your waiver is not conditioned on any representation or assumption
concerning your status under the common law test. You also agree that,
consistent with your independent contractor status, you will not apply for any
government-sponsored benefits that are intended to apply to employees,
including, but not limited to, unemployment benefits.
