June 6, 1997
Xxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
Re: Separation Agreement and General Release
Dear Arvind :
This letter summarizes the agreement ("Agreement") that we have reached
with respect to your employment with Oryx Technology Corp., a publicly traded
Delaware corporation ("the Company"). Upon execution of this letter Agreement,
you and the Company agree that the following sets forth the complete
understanding regarding the cessation of your employment with the Company as
President and Chief Executive Officer of the Company and in any other capacity
with the Company or any of its subsidiaries, excluding your remaining as a
member of the Board of Directors and Chairman of the Board.
In return for your execution of this Agreement, you have resigned as
President and CEO of the Company and as an employee of any and all of its
subsidiaries. You will remain as a member of the Company's Board of Directors,
assuming the position as Chairman. In that capacity, you will be responsible for
assisting the Company by helping it to raise money and providing strategic
direction. You will report to and work with Xxxx Xxxxxxxx, the new President and
CEO of the Company. In consideration of the release of all your claims and your
other obligations as set forth in this Agreement, the Company agrees to provide
you with 12 months severance payments payable through April 24, 1998 equivalent
to your monthly salary as of April 25, 1997, regardless of whether you obtain
other employment. The Company will continue your health care coverage through
the earlier of (i) April 25, 1998 or (ii) you have found full time other
employment. All severance payments will be made on the same schedule as
compensation is paid to the Company's employees. You cease being a full time
employee at April 25, 1997.
Your 1996 stock option for 200,000 shares is hereby accelerated to
become fully vested. In addition, you hold one additional separate fully vested
non-statutory stock option for 100,000 shares of Company stock with an exercise
price of $1.94, representing the closing bid price on the NASDAQ system on April
24, 1997. All of your options are hereby modified to have a term of ten years
for their exercise from their grant date. You understand that failure to
exercise the options within a limited period of time after you have ceased being
an employee will cause them to be treated as non-statutory options. All of your
options are set forth as Exhibit 1 attached hereto. You agree that you have no
other options than those in such Exhibit 1, and that as of the date hereof, 341,
659 of your options have vested, including the 100,000 recently granted options.
You agree to vote all shares or equity securities which you own or control,
directly or indirectly, of the Company, including any successor corporation
which acquires the Company or into which the Company may be merged and where the
Company is not the surviving entity, held by you or any person who succeeds to
your ownership of the shares in any and all matters as to which the shares are
to be voted or a stockholder consent is solicited as recommended or directed by
the Board of Directors of the Company (determined on the majority vote of the
Board).
You agree that you shall not solicit, or attempt to influence, directly
or indirectly, the vote of any stockholder contrary to or inconsistent with any
decision or position taken by the Board of Directors, including but not limited
to the Board's decision to change the Company's plans to fund or manage the
Company's SurgX operations. You agree to support any such decision of the Board
and to support fully the slate of nominees of the Board of Directors for the
1997 annual meeting and thereafter. You understand that satisfying the
obligations set forth in this paragraph is a condition precedent to the
Company's obligation to make the severance payments described above and that if
you fail to honor such obligations, the Company will be under no further
obligation and have no further liability to continue to make the severance
payments.
You may keep your voice mail at the Company until the earlier of April
25, 1998 or you obtain employment at another company. Subject to Xxxx Xxxxxxxx'x
prior aproval in each instance, secretarial assistance may be available for your
use on Company business by the Company. You may retain the fax machine in your
possession.
You understand and agree that you are otherwise ineligible to receive
any severance, continued health care coverage, stock, or stock options in the
Company and that the aforementioned amounts represent more than the Company is
obligated to provide you. You further agree that this offer is made as a part of
a settlement specific to you. You agree that you have returned all Company owned
property in your actual or constructive possession to the Company.
In consideration for the benefits described above, you, on behalf of
yourself, your agents, assignees, attorneys, heirs, executors, and
administrators, hereby release the Company and its successors, assigns, parents,
subsidiaries, divisions, affiliates, officers, directors, shareholders,
employees, agents, and representatives from:
(a) any and all claims, liens, demands, causes of action, obligations,
damages and liabilities, known or unknown, of any nature whatsoever, that you
may have now or may hereafter claim to have against the Company or its
successors, assigns, parents, subsidiaries, divisions, affiliates, officers,
directors, shareholders, employees, agents, and representatives, arising
directly or indirectly out of, or in any way connected with or based upon, or
related in any way to, any and all claims under any state or federal
discrimination statute including, but not limited to, age, physical or mental
disability, medical condition, and any other claims covered under the California
Fair Employment and Housing Act, the federal Age Discrimination in Employment
Act (as amended by the Older Workers' Benefit Protection Act), and any claims of
wrongful termination under state or federal law, including claims for expenses
and attorneys' fees in connection with such claims; and
(b) any and all claims, liens, demands, causes of action, obligations,
damages and liabilities, known or unknown, of any nature whatsoever, that you
may have now or may hereafter claim to have against the Company or its
successors, assigns, parents, subsidiaries, divisions, affiliates, officers,
directors, shareholders, employees, agents, and representatives, arising
directly or indirectly out of, or in any way connected with or based upon, or
related in any way to your employment with the Company, the termination of your
employment, or to any physical or mental harm or distress from such employment
or termination of such employment, including, without limitation, any and all
claims under California or federal statutory or decisional law pertaining to
wrongful discharge, discrimination, or breach of public policy.
You waive all rights and remedies under 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 its favor at the time of
executing the release, which if known by it must have
materially affected its settlement with the debtor.
Notwithstanding the foregoing or any other provision of this Agreement,
nothing herein changes the Company's obligations to indemnify you as required
under California Labor Code Section 2802 or any applicable Company insurance
policy affecting its officers, directors, and/or employees. You agree that if
the facts with respect to which this Agreement is executed are found hereafter
to be different from the facts which you now believe to be true, you expressly
accept and assume the risk of such possible differences in facts and agree that
this Agreement shall be and remain effective notwithstanding such differences in
facts.
You understand and agree that during the course of your employment, you
had access to proprietary or confidential information belonging to the Company.
You understand and agree that you will not disclose, transfer, publish or
otherwise use, either directly or indirectly, any of such information.
You and the Company agree that confidentiality of the existence and
terms of this Agreement is of the essence. You shall not disclose the terms and
this Agreement, including without limitation, the nature and payment of
consideration referred to in this Agreement, to any third party other than your
legal counsel, tax advisor, and/or members of your immediate family. You further
agree to make no voluntary statements regarding this Agreement except as may be
necessary for the purposes of audit, taxation returns or other disclosures
required by law or as may be reasonably necessary to conduct personal financial
business, and to take no other action whatsoever which might reasonably be
expected to result in any disclosure whatsoever concerning this Agreement. You
also agree not to advise, assist or influence in any manner whatsoever any other
past, present or future employee of the Company in asserting any claim against
the Company or in filing, preparing to file or prosecuting any lawsuit, charges,
complaints, petitions or other accusatory pleadings against the Company with any
governmental agency or in any court, provided, however, that providing testimony
or documents pursuant to a valid subpoena shall not be considered a breach of
this provision.
In the event that any dispute arises with respect to the
interpretation, enforcement or alleged breach of this Agreement, you and the
Company agree to resolve such dispute through arbitration conducted before a
single arbitrator according to the arbitration rules of the American Arbitration
Association. The arbitration will be held in Palo Alto, California, and the
prevailing party shall be entitled to recover its reasonable costs and
attorneys' fees incurred in connection with such arbitration.
This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto and upon their successors, heirs and assigns.
This Agreement is entered into by each party hereto without any
admission of liability to each other, but solely for the purpose of avoiding
further uncertainty, controversy and legal expense. Without limiting the
foregoing, neither this Agreement nor any consideration paid by either party
therefor, nor anything contained in this Agreement, shall be taken or construed
to be an inference of admission by the Company with respect to any claims that
could be alleged.
You and the Company both warrant that no promise, inducement or
agreement not expressed herein has been made in connection with this Agreement;
that this Agreement constitutes the entire agreement between them, and cancels
and supersedes all prior communications or understandings between them with
respect to the subject matter of this Agreement. This Agreement may only be
varied or modified by a written document executed by you and the Company.
You acknowledge that you are aware that under the Older Workers'
Benefit Protection Act, you have twenty-one (21) calendar days to decide whether
to enter into this Agreement. You acknowledge and agree that you have been
allowed twenty-one-(21) calendar days to consider this Agreement or, if you
execute it prior to the expiration of that twenty-one (21) day period, you
voluntarily waived any time remaining. You further acknowledge that you are
aware that under the Older Workers' Benefit Protection Act you may revoke this
Agreement within seven (7) calendar days after it is signed. You further agree
that this Agreement shall not be effective until after this revocation period
has expired and that you are aware that in the event you timely exercise your
right of rescission, you will have no rights under this Agreement.
You acknowledge and agree that you have had had the opportunity to
consult with the advisor of your choice with respect to the matters which are
the subject of this Agreement. You further agree that you have entered into this
Agreement freely and voluntarily.
This Agreement shall in all respects be interpreted, enforced and
governed under the laws of the State of California.
In the event that any provision of this Agreement be declared or be
determined in a court of competent jurisdiction to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining parts,
terms or provisions shall not be affected thereby, and said illegal,
unenforceable or invalid part, term or provision shall be deemed not to be a
part of this Agreement.
Please indicate your acceptance of this Agreement by executing below on
the signature line. A fully executed copy of this Agreement will be returned to
you for your records.
ORYX TECHNOLOGY CORP.
Dated: June ___, 1997 By __________________________
Xxxx Xxxxxxxx
President and Chief Executive Officer
Dated: June ___, 1997 By __________________________
Xxxxxx Xxxxx
Exhibit 1 Schedule and Copy of Options
6/6/97 Xxxxx Employment Severance 62375
XXXXXX XXXXX STOCK OPTION STATUS
4/25/97
Award # Award Date # Options Exercise Price # Vested @ 4/26/97 # With Full
------- ---------- --------- -------------- ------------------ -----------
Acceleration
000021 4/26/93 39,000 $1.00 37,172 39,000
000053 2/28/95 2,569 $1.36 2,569 2,569
000101 4/1/96 200,000 $1.97 87,500 200,000
4/25/97 100,000 $1.94 0 100,000
------- - -------
4/25/97 341,569 127,241 341,569
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