EXHIBIT 10.19
FINAL TERMS AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made by and
between ZapMe! Corporation (the "Company") and Xxxxx Xxxxxxxx ("Employee").
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company and Employee have entered into an Employment,
Confidential Information, Invention Assignment and Arbitration Agreement (the
"Confidentiality Agreement");
WHEREAS, the Company and Employee have mutually agreed to terminate the
employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree as
follows:
1. TERMINATION. Employee's employment with the Company terminated on
October 10, 2000.
2. CONSIDERATION.
(a) The Company agrees to pay Employee a lump-sum payment equal to
nine months current base salary, less applicable withholding, payable to
Employee in accordance with the Company's regular payroll practices.
(b) The Company agrees that, subject to the approval of the
Company's Board of Directors, Employee will continue to vest in shares of the
Company's Common Stock according to Employee's Stock Option Agreements through
April 1, 2001. Employee agrees that he shall have no right to vest in any other
shares under this or any other agreement with the Company, including without
limitation shares that would otherwise vest in June 2001.
(c) The Company agrees to pay Employee's COBRA premiums for health
insurance through July 31, 2001.
3. CONFIDENTIAL INFORMATION. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Employee and the Company. Employee shall
return all the Company property and confidential and proprietary information in
his possession to the Company on the Effective Date of this Agreement.
4. PAYMENT OF SALARY AND ADDITIONAL CONSIDERATION. Employee
acknowledges and represents that the Company has paid all salary, wages,
bonuses, accrued vacation, commissions and any and all other benefits due to
Employee.
5. RELEASE OF CLAIMS. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company. Employee, on behalf of himself, and his respective heirs, family
members, executors and assigns, hereby fully and
forever releases the Company and its respective officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, from, and agrees not to xxx
concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that he may possess arising from any omissions, acts or facts that
have occurred up until and including the Effective Date of this Agreement
including, without limitation,
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and Labor Code section 201,
ET SEQ. and section 970, ET SEQ.;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
Employee agrees 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.
6. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Employee acknowledges
that he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by
this writing that (a) he should consult with an attorney PRIOR to executing this
Agreement; (b) he has at least forty-five (45) days within which to consider
this Section 6 of the Agreement; (c) he has at least seven (7) days following
the execution of this Agreement by the parties to revoke this Section 6 of the
Agreement; and (d) this Section 6 of the Agreement shall not be effective until
the revocation period has expired.
7. CIVIL CODE SECTION 1542. Employee represents that he is not aware of
any claims against the Company other than the claims that are released by this
Agreement. Employee acknowledges that he has been advised by legal counsel and
is 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 HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Employee, being aware of said code section, agrees to expressly waive
any rights he may have thereunder, as well as under any other statute or common
law principles of similar effect.
8. NO PENDING OR FUTURE LAWSUITS. Employee represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that he does not intend to bring any claims on
his own behalf or on behalf of any other person or entity against the Company or
any other person or entity referred to herein.
9. TAX CONSEQUENCES. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums under the terms
of this Agreement. Employee agrees and understands that he is responsible for
payment, if any, of local, state and/or federal taxes on the sums paid hereunder
by the Company and any penalties or assessments thereon, including any penalties
or assessments resulting from the allocation of the sums paid hereunder.
Employee further agrees to indemnify and hold the Company harmless from any
claims, demands, deficiencies, penalties, assessments, executions, judgments, or
recoveries by any government agency against the Company for any amounts claimed
due on account of Employee's failure to pay, or delayed payment of, federal or
state taxes or damages sustained by the Company by reason of any such claims,
including reasonable attorneys' fees.
10. NO COOPERATION. Employee agrees he will not act in any manner that
might damage the business of the Company. Employee agrees that he will not
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so.
11. NON-DISPARAGEMENT. Employee agrees to refrain from any
disparagement, defamation, libel or slander of the Company and its respective
officers, directors, employees, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns or tortious interference with the contracts and
relationships of the Company and its respective officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns. All inquiries by potential
future employers of Employee will be directed to the Company 's Director of
Human Resources. Upon inquiry, the Company shall disclose only Employee's last
position and dates of employment. Company and all parties referred to herein
agree to refrain from any disparagement, defamation, libel or slander of
Employee.
12. NO ADMISSION OF LIABILITY. The Parties understand and acknowledge
that this Agreement constitutes a compromise and settlement of disputed 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.
13. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
14. ARBITRATION. The Parties agree that any and all disputes arising
out of the terms of this Agreement, their interpretation, and any of the matters
herein released, including any potential claims of harassment, discrimination or
wrongful termination shall be subject to binding arbitration held in Santa Xxxxx
County, California, under the Arbitration Rules set forth in California Code of
Civil Procedure Section 1280, ET SEQ., including section 1283.05, (the "Rules")
and pursuant to California law. The Parties agree that the prevailing party in
any arbitration shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award.
15. 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.
Employee represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through his to bind them to the
terms and conditions of this Agreement. Employee 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.
16. NO REPRESENTATIONS. Employee represents that he 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 upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
17. 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.
18. ENTIRE AGREEMENT. This represents the entire agreement and
understanding between the Company and Employee concerning Employee's separation
from the Company, and supersedes and replaces any and all prior agreements and
understandings concerning Employee's relationship with the Company and his
compensation by the Company.
19. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Employee and the President of the Company.
20. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
21. EFFECTIVE DATE. With the exception of Section 6, which shall be
effective seven days after this Agreement has been signed by both Parties, this
Agreement shall be effective immediately after it has been signed by both
parties.
22. 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.
23. 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 the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, 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;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
ZAPME! CORPORATION
Dated: , 2000 By
---------- ------------------------------------
Xxxxx Xxxxxxxxx
Chief Executive Officer
XXXX XXXXXXXX, an individual
Dated: , 2000
---------- ------------------------------------
Xxxxx Xxxxxxxx
