Exhibit 10.11
TCSI CORPORATION
COMPENSATION PROTECTION AGREEMENT
THIS COMPENSATION PROTECTION AGREEMENT (this "Agreement"), made
effective as of the ___ day of December, 2001 (the "Effective Date"), by and
between TCSI Corporation, a corporation incorporated under the laws of Nevada
(the "Company"), and _________________ (the "Protected Officer").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change in Control (as hereinafter defined) exists and
that the threat or the occurrence of a Change in Control can result in
significant distractions of its key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the best
interests of the Company and its shareholders to retain the services of
Protected Officer and to ensure Protected Officer's continued dedication and
efforts in such event without undue concern for Protected Officer's personal
financial and employment security; and
WHEREAS, in order to induce Protected Officer to remain in the employ
of the Company, particularly in the event of a threat or the occurrence of a
Change in Control, the Company desires to enter into this Agreement with
Protected Officer to provide Protected Officer with certain benefits in the
event Protected Officer's employment is terminated;
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. TERM OF AGREEMENT.
This Agreement shall commence as of the date hereof and shall continue
in effect until the second anniversary of the Effective Date; provided, that
commencing on the second anniversary of the Effective Date and on each
subsequent anniversary thereof, the term of this Agreement shall automatically
be extended for one (1) year unless either the Company or Protected Officer
shall have given written notice to the other at least ninety (90) days prior
thereto that the term of this Agreement shall not be so extended; and provided,
further, that notwithstanding the foregoing, the term of this Agreement shall
not expire prior to the expiration of six (6) months after the occurrence of a
Change in Control.
2. DEFINITIONS.
2.1 Accrued Compensation. "Accrued Compensation" shall mean an amount
which shall include all amounts earned or accrued through the Termination Date
(as hereinafter defined) but not paid as of the Termination Date, including,
without limitation, (i) base salary, (ii) bonus pay to which the Protected
Officer is entitled under any bonus policy or arrangement of the Company, (iii)
reimbursement for reasonable and necessary expenses incurred by Protected
Officer on behalf of the Company during the
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period ending on the Termination Date, (iv) vacation pay, and (v) sabbatical pay
to which the Protected Officer is entitled under the Company's sabbatical
policy.
2.2 Base Amount. "Base Amount" shall mean the amount of Protected Officer's
monthly base salary at the greater of the rate in effect immediately prior to
the Change in Control (if applicable) or the rate in effect on the Termination
Date, and shall include all amounts of Protected Officer's base salary that are
deferred under the qualified and non-qualified employee benefit plans of the
Company or any other agreement or arrangement.
2.3 Cause. A termination of employment is for "Cause" if Protected Officer
has been convicted of a felony involving fraud or dishonesty or the termination
is evidenced by a resolution adopted in good faith by two-thirds of the Board to
the effect that Protected Officer (i) continually failed substantially to
perform Protected Officer's reasonably assigned duties with the Company (other
than a failure resulting from Protected Officer's incapacity due to physical or
mental illness or from Protected Officer's assignment of duties following a
Change in Control that would constitute Good Reason (as hereinafter defined)),
which failure continued for a period of at least ten (10) days after a written
notice of demand for substantial performance has been delivered to Protected
Officer specifying the manner in which Protected Officer has failed
substantially to perform, or (ii) engaged in conduct which is demonstrably and
materially injurious to the Company.
2.4 Change in Control. "Change in Control" shall mean any of the following:
(a) An acquisition (other than directly from the Company) of any voting
securities of the Company (the "Voting Securities") by any Person (as the term
"person" is used for purposes of Section 13 or 14 of the Securities Exchange Act
of 1934, as amended (the "1934 Act")) immediately after which such Person has
beneficial ownership (as the term "beneficial ownership" is defined under Rule
13d-3 promulgated under the 0000 Xxx) of forty percent (40%) or more of the
combined voting power of the Company's then outstanding Voting Securities;
provided, that in determining whether a Change in Control has occurred, Voting
Securities which are acquired in a Non-Control Acquisition (as hereinafter
defined) shall not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (1) the
Company or (2) any corporation or other Person of which a majority of its voting
power or its equity securities or equity interest is owned directly or
indirectly by the Company (a "Subsidiary"), (ii) the Company or any Subsidiary,
or (iii) any Person in connection with a Non-Control Transaction (as hereinafter
defined);
(b) The individuals who, as of the date hereof, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at least a
majority of the Board; provided, that if the appointment, election or nomination
for election by the Company's shareholders of any new director was approved by a
vote of at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Agreement,
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be considered a member of the Incumbent Board; and provided, further, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
0000 Xxx) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest;
(c) A merger, consolidation or reorganization involving the
Company, unless such merger, consolidation or reorganization satisfies the
conditions set forth in clauses (1) and (2) below (any transaction(s) meeting
the requirements of clauses (1) and (2) below being referred to herein as
"Non-Control Transactions"):
(1) the shareholders of the Company immediately before such
merger, consolidation or reorganization own, directly or indirectly, immediately
following such merger, consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding voting securities of the
corporation resulting from such merger, consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger, consolidation or
reorganization; and
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such merger,
consolidation or reorganization constitute at least a majority of the members of
the board of directors of the Surviving Corporation;
(d) A complete liquidation or dissolution of the Company;
(e) The sale or other disposition of all or substantially all of
the assets of the Company to any Person (other than a transfer to a Subsidiary);
and
(f) Any other event that at least two-thirds of the Incumbent Board
in its sole discretion shall determine constitutes a Change in Control.
(g) Notwithstanding the foregoing provisions of this Section 2.4, a
Change in Control shall not be deemed to occur solely because any Person (the
"Subject Person") acquired beneficial ownership of more than the permitted
amount of the outstanding Voting Securities as a result of the acquisition of
Voting Securities by the Company which, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares beneficially
owned by the Subject Person; provided, that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company the Subject Person becomes the beneficial owner of any additional voting
Securities which increases the percentage of the then outstanding Voting
Securities beneficially owned by the Subject Person, then a Change in Control
shall occur.
(h) Notwithstanding anything contained in this Agreement to the
contrary, if Protected Officer's employment is terminated prior to a Change in
Control
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and the Board determines that such termination (i) was at the request of a third
party who has indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who subsequently effectuates a Change in Control
(a "Third Party") or (ii) otherwise occurred in connection with, or in
anticipation of, a Change in Control which actually occurs, then, for all
purposes of this Agreement, the date of a Change in Control with respect to
Protected Officer shall mean the date immediately prior to the date of such
termination of Protected Officer's employment.
2.5 Company. The "Company" shall mean TCSI Corporation and shall include
its "Successors and Assigns" (as hereinafter defined).
2.6 Disability. "Disability" shall have the same meaning as under the
long-term disability policy of the Company, regardless of whether Protected
Officer is covered by such policy. If the Company does not have a long-term
policy plan in place, "Disability" shall mean a physical or mental infirmity
which impairs Protected Officer's ability to substantially perform Protected
Officer's duties with the Company for a period of one hundred eighty (180)
consecutive days; provided, that Protected Officer has not returned to Protected
Officer's full-time employment prior to the Termination Date as stated in the
Notice of Termination (as hereinafter defined).
2.7 Good Reason.
(a) "Good Reason" shall mean the occurrence of any of the events or
conditions described in subsections (1) through (6) hereof:
(1) (A) a change in Protected Officer's status or responsibilities
(including reporting responsibilities) which represents a material and adverse
change from Protected Officer's status or responsibilities as in effect at any
time within ninety (90) days preceding the date of a Change in Control or at any
time thereafter; or (B) the assignment to Protected Officer of any duties or
responsibilities which are materially inconsistent with Protected Officer's
duties or responsibilities as in effect at any time within ninety (90) days
preceding the date of a Change in Control or at any time thereafter;
(2) a reduction in Protected Officer's base salary to a level below
that in effect at any time within ninety (90) days preceding the date of a
Change in Control or at any time thereafter (except to the extent such reduction
is part of a comprehensive reduction in salary applicable to employees of the
Company generally so long as the reduction applicable to Protected Officer is
comparable to the reduction applied to other senior executives of the Company),
or any failure to pay Protected Officer any compensation or benefits to which
Protected Officer is entitled within five (5) days of the date Protected Officer
notifies the Company of its failure to pay such compensation or benefits;
(3) the Company's requiring Protected Officer to be based at any
place outside a 50-mile radius from Protected Officer's job location or
residence
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prior to the Change in Control without Protected Officer's prior written
consent, except for travel that is reasonably necessary in connection with the
Company's business;
(4) the insolvency or the filing (by any party, including the
Company) of a petition for bankruptcy of the Company, which petition is not
dismissed within sixty (60) days;
(5) any material breach by the Company of any provision of this
Agreement; and
(6) the failure of the Company to obtain an agreement,
satisfactory to Protected Officer, from any Successors and Assigns (as
hereinafter defined) to assume and agree to perform this Agreement, as
contemplated in Section 9 hereof.
(b) Any event or condition described in this Section 2.7 which occurs
prior to a Change in Control, but which the Board determines (i) was at the
request of a Third Party, or (ii) otherwise arose in connection with, or in
anticipation of, a Change in Control which actually occurs, shall constitute
Good Reason for purposes of this Agreement notwithstanding that it occurred
prior to the Change in Control.
(c) Protected Officer's right to terminate Protected Officer's
employment pursuant to this Section 2.7 shall not be affected by Protected
Officer's incapacity due to physical or mental illness. Protected Officer must
determine whether to invoke the right to terminate employment pursuant to
Section 2.7(a)(1) or 2.7(a)(3) within ninety (90) days of the change in status,
responsibilities or relocation referred to therein.
2.8 Notice of Termination. "Notice of Termination" shall mean a written
notice from the Company of termination of Protected Officer's employment which
indicates the specific termination provision in this Agreement relied upon and
which sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Protected Officer's employment under the
provision so indicated.
2.9 Successors and Assigns. "Successors and Assigns" shall mean a
corporation or other entity acquiring all or substantially all the assets and
business of the Company (including this Agreement), whether by operation of law
or otherwise.
2.10 Termination Date. "Termination Date" shall mean (i) in the case of
Protected Officer's death, Protected Officer's date of death, (ii) in the case
of Good Reason, the last day of Protected Officer's employment, and (iii) in all
other cases, the date specified in the Notice of Termination; provided, that if
Protected Officer's employment is terminated by the Company due to Disability,
the date specified in the Notice of Termination shall be at least thirty (30)
days from the date the Notice of Termination is given to Protected Officer; and
provided, further, that in the case of Disability, Protected Officer shall not
have returned to the full-time performance of Protected Officer's duties during
such period of at least thirty (30) days.
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3. PROTECTION OFFICER OBLIGATIONS
During the term of this Agreement, and excluding any periods of
vacation, sabbatical and leave due to sickness or Disability to which Protected
Officer is entitled, Protected Officer agrees to devote his full time and
attention spent on business matters to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to
Protected Officer by the Company (that do not constitute Good Reason), to use
Protected Officer's reasonable best efforts to perform faithfully and
efficiently such responsibilities; provided, that it shall not be a violation of
this Agreement for Protected Officer to, without limitation, (i) serve on
corporate, civic or charitable boards or committees, (ii) deliver lectures or
fulfill speaking engagements, (iii) manage personal investments and (iv) perform
such other activities as the Board may approve, so long as such activities do
not interfere materially with the performance of Protected Officer's
responsibilities as an employee of the Company. It is expressly understood and
agreed that to the extent that any such activities have been conducted by
Protected Officer prior to the date of a Change in Control, the continued
conduct of such activities (or the conduct of activities similar in nature and
scope) subsequent to such date shall not thereafter be deemed to interfere with
the performance of Protected Officer's responsibilities to the Company.
4. TERMINATION OF EMPLOYMENT PRIOR TO A CHANGE IN CONTROL.
4.1 Termination Benefits. The Protected Officer shall be entitled to
the following compensation and benefits if, during the term of this Agreement,
Protected Officer's employment with the Company shall be terminated prior to a
Change in Control:
(a) If Protected Officer's employment with the Company shall be
terminated (i) by the Company for Cause or Disability, (ii) by reason of
Protected Officer's death, (iii) due to Protected Officer's retirement pursuant
to the Company's policies applying to executive officers generally, or (iv) by
Protected Officer other than for Good Reason, the Company shall pay to Protected
Officer the Accrued Compensation;
(b) If Protected Officer's employment with the Company shall be
terminated by the Company without Cause or by Protected Officer with Good
Reason, Protected Officer shall be entitled to the following:
(1) the Company shall pay Protected Officer all Accrued
Compensation; and
(2) the Company shall pay Protected Officer as severance pay
and in lieu of any further compensation for periods subsequent to the
Termination Date, an amount in cash equal to the greater of (i) six (6) times
the Base Amount or (ii) the severance payment to which Protected Officer would
otherwise be entitled under the
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Company's severance policy in effect as of the Effective Date or, if greater, at
any time within the ninety (90) days preceding the Termination Date.
(c) The amounts provided for in Sections 4.1(a) or 4.1(b) shall be paid
in a single lump sum cash payment within thirty (30) days after the Termination
Date (or earlier, if required by applicable law).
(d) The Protected Officer shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise, and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Protected Officer in any subsequent
employment.
4.2 Cooperation and Release. Notwithstanding anything to the contrary
contained in this Agreement, payment of the amount specified in Section
4.1(b)(2) hereof is conditional upon (a) Protected Officer's compliance with the
provisions of Section 8, (b) Protected Officer reasonably cooperating with the
Company in connection with all matters relating to Protected Officer's
employment with the Company, (c) Protected Officer assisting the Company as
reasonably requested in transitioning Protected Officer's responsibilities to
Protected Officer's replacement, and (d) Protected Officer refraining from doing
or saying anything derogatory about the Company or its businesses or personnel;
provided, that Protected Officer shall not be required to perform any duties or
take any action that would constitute Good Reason. Payment by the Company of the
amount specified in Section 4(b)(2) hereof is further conditioned upon Protected
Officer's execution and delivery of the Separation Agreement and Release
(attached as Exhibit A to this Agreement) in favor of the Company.
5. TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL.
5.1 Termination Benefits. The Protected Officer shall be entitled to the
following compensation and benefits if, during the term of this Agreement,
Protected Officer's employment with the Company shall be terminated at any time
following a Change in Control:
(a) If Protected Officer's employment with the Company shall be
terminated (i) by the Company for Cause or Disability, (ii) by reason of
Protected Officer's death, (iii) due to Protected Officer's retirement pursuant
to the Company's policies applying to executive officers generally, or (iv) by
Protected Officer other than for Good Reason, the Company shall pay to Protected
Officer the Accrued Compensation;
(b) If Protected Officer's employment with the Company shall be
terminated by the Company without Cause or by Protected Officer with Good
Reason, Protected Officer shall be entitled to the following:
(1) the Company shall pay Protected Officer all Accrued
Compensation;
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(2) the Company shall pay Protected Officer as severance pay and
in lieu of any further compensation for periods subsequent to the Termination
Date, an amount in cash equal to nine (9) times the Base Amount; and
(3) until the first (1st) anniversary of the Termination Date,
Protected Officer shall have such rights with respect to medical benefits as
were provided to Protected Officer by the Company as of the Effective Date or,
if greater, at any time within ninety (90) days preceding the Termination Date;
provided that such benefits shall be offset or reduced by the amount of medical
benefits provided to Protected Officer by any subsequent employer prior to the
first (1st) anniversary of the Termination Date.
(c) The amounts provided for in Sections 5.1(a) or 5.1(b)(1) and (2)
shall be paid in a single lump sum cash payment within thirty (30) days after
the Termination Date (or earlier, if required by applicable law).
(d) The Protected Officer shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and, except as set forth in Section 5.1(b)(3), no such payment
shall be offset or reduced by the amount of any compensation or benefits
provided to Protected Officer in any subsequent employment.
5.2 Cooperation and Release. Notwithstanding anything to the contrary
contained in this Agreement, payment of the amount specified in Section
5.1(b)(2) hereof is conditional upon (a) Protected Officer's compliance with the
provisions of Section 8, (b) Protected Officer reasonably cooperating with the
Company in connection with any Change of Control or proposed Change of Control
and all matters relating to Protected Officer's employment with the Company, (c)
Protected Officer assisting the Company as reasonably requested in transitioning
Protected Officer's responsibilities to Protected Officer's replacement, and (d)
Protected Officer refraining from doing or saying anything derogatory about the
Company or its businesses or personnel; provided, that Protected Officer shall
not be required to perform any duties or take any action that would constitute
Good Reason. Payment by the Company of the amount specified in Section 5(b)(2)
hereof is further conditioned upon Protected Officer's execution and delivery of
the Separation Agreement and Release (attached as Exhibit A to this Agreement)
in favor of the Company.
6. OTHER BENEFIT POLICIES; EMPLOYMENT STATUS.
6.1 Other Benefit Policies. Unless otherwise specified herein, the
payments, benefits and protections provided to Protected Officer pursuant to
this Agreement shall be in lieu of any other severance or termination payments,
benefits or protections under any other Company severance or termination plan,
program, practice or arrangement, except as may be expressly provided in writing
under the terms of any plan or policy of the Company, or in a written agreement
between the Company and Protected Officer entered into after the date of this
Agreement. Except as provided in Section 5.1(b)(3), Protected Officer shall not
have any further rights following the Termination Date with respect to benefits
provided by the Company, including without limitation life insurance,
disability,
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medical, dental and hospitalization benefits and pension and retirement benefits
as were provided to Protected Officer at any time preceding the Termination
Date. Notwithstanding the foregoing, nothing in this Agreement shall prevent or
limit Protected Officer's continuing or future participation (while employed at
the Company) in any benefit, bonus, incentive or other plan or program provided
by the Company (except for any severance or termination policies, plans,
programs or practices) and for which Protected Officer may qualify, nor shall
anything herein limit or reduce such rights as Protected Officer may have under
any other agreements with the Company (except for any severance or termination
agreement). Amounts which are vested benefits or which Protected Officer is
otherwise entitled to receive under any plan or program of the Company shall be
payable in accordance with such plan or program, except as explicitly modified
by this Agreement.
6.2 "At Will" Employment Status. Nothing in this Agreement shall alter
Protected Officer's status as an "at will" employee of the Company.
7. NOTICE OF TERMINATION.
Any purported termination of Protected Officer's employment by the
Company shall be communicated by a Notice of Termination to Protected Officer.
For purposes of this Agreement, no such purported termination shall be effective
without such a Notice of Termination.
8. CONFIDENTIAL INFORMATION.
Protected Officer shall hold in confidence for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company and its businesses, which shall have been obtained by Protected
Officer in the course of Protected Officer's employment by the Company and which
shall not be public knowledge (other than by acts by Protected Officer in
violation of this Agreement) ("Confidential Information"). Confidential
Information shall not include information which is required to be disclosed
pursuant to law, provided Protected Officer uses reasonable efforts to give the
Company reasonable notice of such required disclosure. Whether before or after
termination of Protected Officer's employment with the Company, Protected
Officer shall not, without the prior written consent of the Company, communicate
or divulge any Confidential Information, other than to the Company and to those
persons or entities designated by the Company or as otherwise is reasonably
necessary for Protected Officer to carry out his or her responsibilities as an
executive of the Company.
9. SUCCESSORS; BINDING AGREEMENT.
9.1 This Agreement shall be binding upon and shall inure to the benefit
of the Company and its Successors and Assigns, and the Company shall require any
Successors and Assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place.
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9.2 Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by Protected Officer or Protected Officer's
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by Protected Officer's legal personal representative.
10. FEES AND EXPENSES.
The Company agrees to pay, to the full extent permitted by law, all
legal fees and expenses which Protected Officer may reasonably incur as a result
of any contest by the Company or others of the validity or enforceability of, or
liability under, any provision of this Agreement which is ultimately decided in
favor of Protected Officer.
11. NOTICE.
Notices and all other communications provided for in this Agreement
(including the Notice of Termination) shall be in writing and shall be deemed to
have been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses last
given by each party to the other; provided, that all notices to the Company
shall be directed to the attention of the Board with a copy to the Secretary of
the Company. All notices and communications shall be deemed to have been
received on the date of delivery thereof or on the third business day after the
mailing thereof, except that notice of change of address shall be effective only
upon receipt.
12. SETTLEMENT OF CLAIMS.
The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against Protected Officer or others.
13. MISCELLANEOUS.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Protected Officer and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreement or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
has been made by either party which is not expressly set forth in this
Agreement.
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14. GOVERNING LAW; ARBITRATION.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California without giving effect to the
conflict of laws principles thereof.
(b) Any controversy or claim arising out of, relating to or in
connection with this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association ("AAA") in
accordance with its then existing Commercial Arbitration rules and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(c) It is the express intent and agreement of the parties that this
Section 14 supercede any dispute resolution procedure provided under any
employment agreement between the Company and Protected Officer. Furthermore, it
is the express agreement of the parties that the provisions of this Section 14,
including the rules of the AAA, as modified by the terms of this Section 14,
shall govern the arbitration of any disputes arising pursuant to this Agreement.
In the event of any conflict between the law of the State of California, the law
of the arbitral location, and the U.S. Arbitration Act (Title 9, U.S. Code),
with respect to any arbitration conducted pursuant to this Agreement, to the
extent permissible, it is the express intent of the parties that the law of the
State of California, as modified herein, shall prevail. To the extent this
Section 14 is deemed a separate agreement, independent from this Agreement,
Sections 10, 11, 13, 15 and 16 are incorporated herein by reference. Either
party (the "Initiating Party") may commence an arbitration by submitting a
Demand for Arbitration under the AAA Rules and by notice to the other Party (the
"Respondent") in accordance with Section 11. Such notice shall set forth in
reasonable detail the basic operative facts upon which the Initiating Party
seeks relief and specific reference to the clauses of this Agreement, the amount
claimed, if any, and any non-monetary relief sought against the Respondent.
After the initial list of issues to be resolved has been submitted, the
arbitrator shall permit either party to propose additional issues for resolution
in the pending proceedings.
(d) The place of arbitration shall be San Francisco, California, or any
other place selected by mutual agreement.
(e) The parties shall attempt, by agreement, to nominate a sole
arbitrator. If the parties fail to nominate a sole arbitrator within 30 days
from the date when the Initiating Party's Demand for Arbitration has been
communicated to the other party, the AAA shall appoint a sole arbitrator who has
expertise in resolving employment-related disputes.
(f) An award rendered in connection with an arbitration pursuant to
this Section 14 shall be final and binding upon the parties, and any judgment
upon such an award may be entered and enforced in any court of competent
jurisdiction.
(g) The parties agree that the award of the arbitral tribunal will be
the sole and exclusive remedy between them regarding any and all claims between
them with
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respect to the subject matter of the arbitrated dispute. The parties hereby
waive all jurisdictional defenses in connection with any arbitration hereunder
or the enforcement of any order or award rendered pursuant thereto (assuming
that the terms and conditions of this arbitration clause have been complied
with).
(h) With respect to any award issued by the arbitrator pursuant to this
Agreement, the parties expressly agree (i) that such order shall be conclusive
proof of the validity of the determination(s) of the arbitrator underlying such
order, and (ii) any court having jurisdiction, may enter judgment upon and
enforce such order, whether pursuant to the U.S. Arbitration Act, or otherwise.
(i) The arbitrator shall issue a written explanation of the reasons for
the award and a full statement of the facts as found and the rules of law
applied in reaching his or her decision to both parties. The arbitrator shall
apportion to each party all costs (other than attorneys' fees) incurred in
conducting the arbitration in accordance with what the arbitrator deems just and
equitable under the circumstances. Except as set forth in Section 10, each party
to this Agreement shall be responsible for its own attorney's fees. Any
provisional remedy which would be available to a court of law shall be available
from the arbitrator pending arbitration of the dispute. Either party may make an
application to the arbitrator seeking injunctive or other interim relief, and
the arbitrator may take whatever interim measures he or she deems necessary in
respect of the subject matter of the dispute, including measures to maintain the
status quo until such time as the arbitration award is rendered or the
controversy is otherwise resolved. The arbitrator shall have the authority to
award any remedy or relief that a court of the State of California could order
or grant, including, without limitation, specific performance of any obligation
created under this Agreement, the issuance of an injunction, or the imposition
of sanctions for abuse or frustration of the arbitration process, but
specifically excluding punitive damages (the parties specifically agree that
punitive damages shall not be available in the event of any dispute).
(j) The parties may file an application in any proper court for a
provisional remedy in connection with an arbitrable controversy, but only upon
the ground that the award to which the application may be entitled may be
rendered ineffectual without provisional relief.
15. SEVERABILITY.
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
16. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes all prior agreements, if any, understandings and arrangements,
oral or otherwise, between the parties hereto with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Protected Officer has executed this
Agreement as of the day and year first above written.
TCSI Corporation,
a Nevada corporation
ATTEST:
By:_______________________________
Name:_____________________________
Secretary:________________________
PROTECTED OFFICER
__________________________________
Signature
__________________________________
Print Name
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EXHIBIT A
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TCSI CORPORATION
SEPARATION AGREEMENT AND RELEASE
This SEPARATION AGREEMENT AND RELEASE (this "Release") by and between
TCSI Corporation, a corporation incorporated under the laws of Nevada (the
"Company"), and _________________ (the "Employee").
RECITALS
WHEREAS, Employee is currently employed by the Company as _____________________.
WHEREAS, the employment relationship between the Company and Employee has been
terminated effective as of _____________________ (the "Separation Date"); and
WHEREAS, Employee agrees to execute this Release in consideration of the
severance payment to be made by the Company pursuant to the Compensation
Protection Agreement entered into by the parties on December ___, 2001 (the
"Agreement"), as well as other consideration set forth in this Release;
NOW, THEREFORE, in consideration of the respective agreements of the parties
contained herein, it is agreed as follows:
1. COMPANY OBLIGATIONS. Upon execution and delivery of this Release, the Company
shall pay to Employee the amount to which Employee is entitled (if any) under
either Sections 4.1(b)(2) or 5.1(b)(2) of the Agreement (the "Severance Pay").
2. EMPLOYEE OBLIGATIONS.
(a) Return of Property. Employee shall promptly return to the Company
------------------
all property of the Company, including, without limitation, all equipment,
tangible proprietary information, documents, books, records, reports, contracts,
lists, computer disks (or other computer-generated files or data), or copies
thereof, created on any medium, prepared or obtained by Employee in the course
of or incident to his employment with the Company.
(b) Continuing Obligations. Employee specifically acknowledges and
----------------------
reaffirms the continuing effect of the obligations contained in the
Non-Disclosure/Assignment Agreement entered into between the parties on
_____________________, as well as the obligations contained in Section 8 of the
Agreement regarding Confidential Information.
(c) Board Resignation. Unless otherwise requested by the Company,
-----------------
Employee agrees to immediately resign from membership on the Company's Board of
Directors, if applicable.
3. RELEASE. Employee and Employee's representatives, heirs, successors, and
assigns do hereby completely release and forever discharge the Company, any
affiliate of the Company, and its and their present and former shareholders,
officers, directors, agents, employees, attorneys, successors, and assigns
(collectively, the "Released Company Parties") from all claims, rights, demands,
actions, obligations, liabilities, and causes of action of every kind and
character, known or unknown, mature or unmatured, which Employee may have now or
in the future arising from any act or omission or condition occurring on or
prior to the Separation Date (including, without limitation, the future effects
of such acts, omissions, or conditions), whether based on tort, contract
(express or implied), or any federal, state, or local law,
1
statute, or regulation (collectively, the "Released Employee Claims"). By way of
example and not in limitation of the foregoing, Released Employee Claims shall
include any claims arising under Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, and the California Fair Employment and Housing
Act, the Age Discrimination in Employment Act, as well as any claims asserting
wrongful termination, harassment, breach of contract, breach of the covenant of
good faith and fair dealing, negligent or intentional infliction of emotional
distress, negligent or intentional misrepresentation, negligent or intentional
interference with contract or prospective economic advantage, defamation,
invasion of privacy, and claims related to disability. Released Employee Claims
shall also include, but not be limited to, claims for wages or other
compensation due, severance pay, bonuses, sick leave, vacation pay, life or
health insurance, or any other fringe benefit. Employee acknowledges that upon
payment of the Severance Pay, he or she has or will have received all wages,
vacation, bonuses and other compensation earned and due as of the Separation
Date. Notwithstanding the foregoing, Released Employee Claims shall not include
any claims based on obligations created by or reaffirmed in this Release.
Furthermore, Released Employee Claims shall not include any contractual, implied
or statutory indemnification rights to which Employee would be entitled for acts
committed within the course and scope of his employment with the Company. Except
as otherwise provided in the Agreement or this Release, Employee releases the
Released Company Parties from any and all obligations for attorneys' fees
incurred in regard to the above claims or otherwise.
The Company, any affiliate, and its and their present and former shareholders,
officers, directors, agents, employees, attorneys, successors, and assigns do
hereby completely release and forever discharge Employee and Employee's
representatives, heirs, successors, and assigns (collectively, "Released
Employee Parties") from all claims, rights, demands, actions, obligations,
liabilities, and causes of action of every kind and character, known or unknown,
mature or unmatured, which the Company may have now or in the future arising
from any act or omission or condition occurring within the course and scope of
Employee's employment on or prior to the Separation Date (including, without
limitation, the future effects of such acts, omissions, or conditions), whether
based on tort, contract (express or implied), or any federal, state, or local
law, statute, or regulation (collectively, the "Released Company Claims").
Notwithstanding the foregoing, Released Company Claims shall not include any
claims based on obligations created by or reaffirmed in this Release.
Furthermore, Released Company Claims shall not include any contractual, implied
or statutory indemnification rights to which the Company may be entitled for
acts committed outside the course and scope of Employee's employment. Except as
otherwise provided in the Agreement or this Release, the Company likewise
releases the Released Employee Parties from any and all obligations for
attorneys' fees incurred in regard to the above claims or otherwise.
4. SECTION 1542 WAIVER. The parties understand and agree that the Released
Company Claims and Released Employee Claims include not only claims presently
known to the parties, but also include all unknown or unanticipated claims,
rights, demands, actions, obligations, liabilities, and causes of action of
every kind and character that would otherwise come within the scope of the
Released Company Claims and Released Employee Claims as described in Section 3.
Employee and the Company both understand that they may hereafter discover facts
different from what they now believe to be true, which if known, could have
materially affected their execution of this Release, but they nevertheless waive
any claims or rights based on different or additional facts. Employee and the
Company knowingly and voluntarily waive any and all rights or benefits that they
now or in the future may have under the terms of Section 1542 of the California
Civil Code, which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in him favor at the time of executing the
release, which if known by him must have materially affected him
settlement with the debtor.
5. COVENANT NOT TO XXX. Employee and the Company shall not xxx or initiate
against any Released
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Party any compliance review, action, or proceeding, or participate in the same,
individually or as a member of a class, under any contract (express or implied),
or any federal, state, or local law, statute, or regulation pertaining in any
manner to the Released Company Claims and Released Employee Claims.
6. NOTICES. Any notice or other communication under this Release must be in
writing and shall be effective upon delivery by hand or three (3) business days
after deposit in the United States mail, postage prepaid, certified or
registered, and addressed to the Company or to Employee at the corresponding
address below. Employee shall be obligated to notify the Company in writing of
any change in Employee's address. Notice of change of address shall be effective
only when done in accordance with this Section.
Employer's Notice Address: Employee's Notice Address:
-------------------------- --------------------------
TCSI Corporation ___________________
0000 Xxxxxx Xxxxxxx Xxxxxxx ___________________
Xxxxxxx, XX 00000
7. INTEGRATION. The parties understand and agree to the following: (i) that the
Agreement as well as the preceding Sections of this Release recite the sole
consideration for this Release; (ii) that no representation or promise has been
made by Employee, the Company, or any other Released Party on any subject
covered under this Release, except as expressly set forth in the Agreement and
this Release; and (iii) that all agreements and understandings between the
parties on any subject covered by this Release are embodied and expressed in the
Agreement and this Release. This Release shall supersede all prior or
contemporaneous agreements and understandings among Employee, the Company, and
any other Released Party, whether written or oral, express or implied, with
respect to any subject covered by this Release, except to the extent that the
provisions of any such agreements and understandings have been expressly
referred to in this Release as having continued effect.
8. AMENDMENTS; WAIVERS. This Release may not be amended except by an instrument
in writing that is signed by each of the parties. No failure to exercise and no
delay in exercising any right, remedy, or power under this Release shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, or power under this Release preclude any other or further exercise
thereof, or the exercise of any other right, remedy, or power provided herein or
by law or in equity.
9. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Employee agrees that Employee will not
assign, sell, transfer, delegate, or otherwise dispose of whether voluntarily or
involuntarily, or by operation of law) any rights or obligations under this
Release. Any such purported assignment, transfer, or delegation shall be null
and void. Employee represents that Employee has not previously assigned or
transferred any claims or released any rights pursuant to this Release. Subject
to the foregoing, this Release shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, successors, attorneys, and
permitted assigns. This Release shall also inure to the benefit of any Released
Party. This Release shall not benefit any other person or entity except as
specifically enumerated in this Release.
10. SEVERABILITY. If any provision of this Release, or its application to any
person, place or circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable or void, such provision shall be
enforced to the greatest extent permitted by law, and the remainder of this
Release and such provision as applied to other persons, places and circumstances
shall remain in full force and effect.
11. ATTORNEYS' FEES. The prevailing party shall be entitled to recover
reasonable attorneys' fees and costs arising from any legal action, arbitration
or other proceeding brought to enforce or interpret the
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terms of this Release.
12. GOVERNING LAW. This Release shall be governed by and construed in accordance
with the law of the State of California, without giving effect to the conflict
of laws principle thereof.
13. INTERPRETATION. This Release shall be construed as a whole, according to its
fair meaning, and not in favor of or against any party. By way of example and
not in limitation, this Release shall not be construed in favor of the party
receiving a benefit nor against the party responsible for any particular
language in this Release. Captions are used for reference purposes only and
should be ignored in the interpretation of the Release.
14. REPRESENTATION BY COUNSEL. The parties acknowledge the following (i) that
they have had the opportunity to consult counsel in regard to this Release; (ii)
that they have read and understand the Release and they are fully aware of its
legal effect; and (iii) that they are entering into this Release freely and
voluntarily, and based on each party's own judgment and not on any
representations or promises made by the other party, other than those contained
in this Release.
The parties have duly executed this Release as of the date first written above.
"Employer" "Employee"
__________________________ __________________________
TCSI Corporation, Name:
a Nevada corporation
By:
Name:
Title:
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