Exhibit 10.27
RESIGNATION AND MUTUAL RELEASE AGREEMENT
This Resignation and Mutual Release Agreement (the "Agreement") is made
by and between Interlink Computer Sciences, Inc., a California corporation (the
"Company") and Xxxxxx X. Xxxxx ("Xxxxx").
WHEREAS, Xxxxx has been employed by the Company;
WHEREAS, in connection with Xxxxx'x resignation as an officer and
director of the Company, Xxxxx and the Company have mutually agreed to continue
Xxxxx'x relationship with the Company as a consultant through June 30, 1998;
NOW, THEREFORE, in consideration of the mutual promises made herein,
Xxxxx and the Company (collectively referred to as the "Parties") hereby agree
as follows;
1. Resignations. Xxxxx hereby resigns as of December 31, 1997 (the
"Effective Date") as a director and an officer of the Company, and as a director
and officer of any of the Company's subsidiaries.
2. Consultant Duties. During the Consulting Period (as defined in
Section 3 below), Xxxxx will continue to work on behalf of the Company's
interest as a Consultant. The duties and responsibilities of Xxxxx shall include
the duties and responsibilities as determined by mutual agreement between the
Company and Xxxxx. Xxxxx shall perform faithfully all duties assigned to her
during the Consulting Period to the best of her ability.
3. Expiration.
(a) The Consulting Period shall begin upon the Effective Date
and shall expire at 5:00 p.m., California time, on June 30, 1998 (the
"Expiration Date") unless sooner terminated pursuant to the provisions of this
Agreement. The period from the Effective Date until the Expiration Date is
referred to herein as the "Consulting Period".
(b) Early Termination. The Company may terminate Xxxxx'x
consulting agreement for Cause (as defined in Section 3(d)) at any time during
the Consulting Period.
(c) Death. The Company shall have no obligation to pay or
provide any compensation or benefits under this Agreement on account of Xxxxx'x
death. Xxxxx'x rights under the benefit plans of the Company in the event of
Xxxxx'x death prior to the Expiration Date shall be determined under the
provisions of those plans.
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(d) Cause. For all purposes under this Agreement, "Cause"
shall mean (i) willful failure by Xxxxx to perform her duties hereunder, (ii) a
willful act by Xxxxx which constitutes gross misconduct and which is injurious
to the Company, (iii) a willful breach by Xxxxx of a material provision of this
Agreement, (iv) a material violation of a federal, state, or foreign law or
regulation applicable to the business of the Company. No act or failure to act
by Xxxxx shall be considered "willful" unless committed without good faith
without a reasonable belief that the act or omission was in the Company's best
interest.
4. Vesting Under Stock Option Agreement. The parties acknowledge that
the vesting of the stock options previously granted to Xxxxx under the Company's
stock plans will continue to the extent the options would otherwise become
exercisable through the conclusion of Xxxxx'x consulting agreement. In
accordance with the terms of such options, Xxxxx shall have until 30 days
following termination of her consulting agreement (June 30, 1998 or for Cause)
to exercise the vested portions thereof. There shall be no further vesting of
any stock options previously granted to Xxxxx under the Company's stock plans
following termination of her consulting agreement. If the Company re-prices
employee stock options during Xxxxx'x consulting period, Xxxxx will be eligible
to participate in the repricing according to the same terms and conditions as
the Company's employees.
5. Severance Payment. The Company agrees to pay Xxxxx xxxxxxxxx equal
to 6 months of her current base salary of $14,166.67 per month ("Severance") in
a lump sum payable on the Company's January 15th payroll run. The Company also
agrees to pay Xxxxx all unused, accrued vacation pay as of December 31, 1997 on
the Company's January 15, 1998 payroll run. Furthermore, the Company agrees to
pay Xxxxx her Q2, FY98 bonus of $17,000 (USD) on the January 15, 1998 payroll
run. The parties understand and agree that the Severance will be reduced by all
necessary and appropriate taxes (e.g., payroll, withholding for Federal and
State taxes, FICA, etc.) which the Company has the obligation of retaining.
6. Benefits. Following the Employment Period, the Company shall
continue to make coverage available to Xxxxx and her dependents under the
Company's group health and dental plans through COBRA.
7. Confidential Information. Xxxxx agrees to immediately return to the
Company all of the Company's property and confidential and proprietary
information in her possession as of the termination of her employment, and
agrees not to use or disclose any such information without the prior written
consent of the Company. The limitations described in this Section 7 are in
addition to any similar limitations to which Xxxxx is subject based on other
legal or contractual obligations.
8. Xxxxxxx Xxxxxxx. During the Consulting Period, Xxxxx and the Company
agree that Xxxxx shall be subject to the restrictions and obligations of the
Company's Xxxxxxx Xxxxxxx Policy, as amended from time to time, a copy of which
is in Xxxxx'x possession.
9. California Labor Code. Assuming the payments of the above severance
amounts, California Labor Code section 206.5 will not be applicable to the
parties hereto. Said section provides in pertinent part:
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NO EMPLOYER SHALL REQUIRE THE EXECUTION OF ANY RELEASE OF
ANY CLAIM OR RIGHT ON ACCOUNT OF WAGES DUE, OR TO BECOME
DUE, OR MADE AS AN ADVANCE ON WAGES TO BE EARNED, UNLESS
PAYMENT OF SUCH WAGES HAS BEEN MADE.
10. Release of Claims. Xxxxx agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Xxxxx by
the Company. The Company and Xxxxx, on behalf of themselves and their respective
heirs, executors, officers, directors, employees, investors, shareholders,
administrators, predecessor and successor corporations, and assigns, hereby
fully and forever release each other and their respective heirs, executors,
officers, directors, employees, investors, shareholders, administrators,
predecessor and successor corporations, and assigns, of and from any claim,
duty, obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred up to and
including the Effective Date including, without limitation:
(a) any and all claims relating to or arising from Xxxxx'x
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from Xxxxx'x
right to purchase shares of stock of the Company;
(c) any and all claims for wrongful discharge of employment;
breach of contract, both express and implied breach of the covenant of good
faith and fair dealing, both express and implied; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; defamation; violation of any federal, state or municipal law
including, but not limited to, any claims for violation of Title VII of the
Civil rights Act of 1964, any and all claims for violation of the Age
Discrimination in Employment Act of 1967, and any and all claims for violation
of the California Fair Employment and Housing Act;
(d) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(e) any and all claims for attorneys' fees and costs.
The Company and Xxxxx agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
11. Acknowledgment of Waiver of Claims under ADEA. Xxxxx acknowledges
that she is waiving and releasing any rights she may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Xxxxx and the Company agree that this waiver
and release does not apply to any rights or claims that may arise
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under ADEA after the Effective Date of this Agreement. Xxxxx acknowledges that
the consideration given for this waiver and release is in addition to anything
of value to which Xxxxx was already entitled. Xxxxx further acknowledges that
she has been advised by this writing that (a) she should consult with an
attorney prior to executing this Agreement; (b) she has at least twenty-one (21)
days within which to consider this Agreement; (c) she has at least seven (7)
days following the execution of this Agreement by the Parties to revoke the
Agreement; and (d) this Agreement shall not be effective until the revocation
period has expired.
12. Civil Code Section 1542. The parties represent that they are not
aware of any claim by either of them other than the claims that are released by
this Agreement. The Company and Xxxxx acknowledge that they are familiar with
the provisions of California Civil Code Section 1542 which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HER
MUST HAVE MATERIALLY AFFECTED HER SETTLEMENT WITH THE
DEBTOR.
The Company and Xxxxx, being aware of said section, agree to expressly
waive any rights that they may have thereunder, as well as under any other
statute or common law principles of similar effect.
13. Confidentiality. Except as required by law, the parties hereto each
agree to use their best efforts to maintain in confidence the existence of
contents and terms of, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). Each party hereto agrees
to take every precaution to prevent disclosure of any Settlement Information to
third parties, and each agrees that there will be no publicity, directly or
indirectly, concerning any Settlement Information. The parties hereto agree to
take every precaution to disclose Settlement Information only to those
employees, officers, directors, attorneys, accountants and family members who
have a reasonable need to know of such Settlement Information.
14. No Disparagement. Except as required by law, Xxxxx agrees that as
of the Effective Date, she will not comment on the Company or any of its
affiliates or employees, directors, outside consultants or any other parties
financially related thereto and upon any inquiries made to Xxxxx, whether
directly or indirectly, relating to such parties, Xxxxx will refer such
inquiries to the Company's Chief Financial Officer.
15. Indemnification. The Company agrees to extend Xxxxx'x
indemnification agreement through the length of her consulting assignment and
that nothing in this Agreement will affect Xxxxx'x rights to indemnification
pursuant to Labor Code Section 2902 or the Company's Certificate of
Incorporation or Bylaws (NOTE: Subject to final Board approval on December 18,
1997).
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16. No Admissions. The parties understand and acknowledge that this
Agreement constitutes a compromise and settlement of claims. No action taken by
the parties hereto, or either of them, either previously or in connection with
this Agreement shall be deemed or construed to be (a) an admission of the truth
or falsity of any claims heretofore made, or (b) an acknowledgment or admission
by either party of any fault or liability whatsoever to the other party or to
any third party.
17. Costs. The parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
18. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Xxxxx represents and warrants that she has the capacity to act on her own behalf
and on behalf of all who might claim through her to bind her to the term and
conditions of this Agreement. Each party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or otherwise of or
against any of the claims or causes of action released herein.
19. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied on any representations or statements made by the other party hereto which
are not specifically set forth in this Agreement.
20. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable, or
void, this Agreement shall continue in full force and effect without said
provision.
21. Entire Agreement. This Agreement represents the entire agreement
and understanding between the parties concerning Xxxxx'x resignation from the
Company and supersedes and replaces any and all prior agreements and
understandings concerning Xxxxx'x relationship with the Company and her
compensation by the Company.
22. No Oral Modification. This Agreement may only be amended in writing
signed by the parties.
23. Governing Law. This Agreement shall be governed by the laws of the
State of California.
24. Effective Date. This Agreement is effective seven (7) days after it
has been signed by both parties.
25. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
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26. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the parties hereto, with full intent of releasing all claims, and the parties
acknowledge that:
(a) They have read the Agreement;
(b) The have been represented in the preparation,
negotiations, and execution of this Agreement by legal counsel of their own
choice or that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains; and
(d) They are fully aware of the legal and binding effect of
this Agreement.
IN WITNESS THEREOF, the parties have executed or caused to be executed
by an authorized officer this Agreement on the respective dates set forth below.
XXXXXX X. XXXXX INTERLINK COMPUTER SCIENCES, INC.
By: By:
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Dated: Dated:
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