EXHIBIT 10.34
[iAsiaWorks, Inc. Logo] iAsiaWorks, Inc.
U.S. HEADQUARTERS
0000 Xxxxxxx xx xxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Tel: 000.000.0000
Fax: 000.000.0000
xxx.xxxxxxxxxx.xxx
Private & Confidential/Addressee Only
October 12, 2001
Xxxxxxxx Xxxxxx
[ADDRESS INTENTIONALLY OMITTED]
Dear Xxx,
This letter sets forth the separation and severance agreement (the "Agreement")
which iAsiaWorks, Inc. (the "Company") is offering to you to aid in your
employment transition.
1. Separation: Your last day of employment with the Company will be October
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12, 2001, (the "Separation Date"). However, for purposes of this Agreement,
and with respect to your Original Agreement (as defined herein), it is
agreed that you have been terminated Without Cause and, other than as set
forth in this Agreement, and would be entitled to all rights and privileges
which that entails under the Original Agreement. Although you will no
longer be an employee of the Company, following the Separation Date, the
Board of Directors of the Company has requested and you have agreed, to
remain as a member of the Company's Board of Directors.
2. Accrued Salary and Vacation: On or before the Separation Date, the Company
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will pay you all accrued salary, and all accrued and unused vacation earned
through the Separation Date, subject to standard payroll deductions and
withholdings. You are entitled to these payments regardless of whether or
not you sign this Agreement.
3. Return of Company Property: Unless otherwise agreed, you must have returned
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all Company Documents and Materials as provided in the Proprietary
Information and Inventions Agreement which you have signed, including
without limitation laptop computers, cell phones, calling cards, printers,
fax machines, LCD projectors, security badges, office keys, and the like,
and all Company documents (and copies of documents), including, but not
limited to, Company files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded
information, and any materials of any kind which contain or embody any
proprietary or confidential information of the Company (and all
reproductions thereof). For the avoidance of doubt, the severance
settlement, as below, being offered to you under the terms of this
Agreement, is fully contingent upon your full compliance with the terms
regarding Return of Company Property, as identified in this clause of this
Agreement.
4. Settlement:
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(a) Severance. Your original employment agreement with the Company,
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dated June 7, 2000, as amended (the "Original Agreement"),
provided for the payment of nine (9) months severance upon
termination of employment with the Company outside of a Change
of Control (as defined therein). You and the Company have each
agreed, that because of the company's difficult financial
condition, in place of the severance set forth in the Original
Agreement under which you are contractually entitled to 9 months
of severance, the Company will pay you, as severance, the sum of
money which is equivalent to four and one-half (4 1/2) months of
your base wage in effect as of the "Effective Date", as defined
in paragraph 16 below subject to standard payroll deductions and
withholdings (the "Settlement Payment"). This amount will be
paid in one (1) lump sum within two (2) calendar days of the
"Effective Date" as defined in paragraph 16 below.
(b) Benefits. The Company agrees that it will pay all required
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premiums to ensure continued health and dental benefits for you
and your family from the Separation Date until, and including,
December 31, 2001.
(c) Stock Grant. As has been approved by the Board of Directors of
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the Company, you will be granted an option to purchase 200,000
shares of iAsiaWorks' common stock at the price in effect of
time of approval (the "Option"). All shares of common stock
covered by the Option shall be fully vested upon grant and shall
be subject to and adjusted accordingly for stock splits and
reverse splits.
5. Stock Options; Stock Purchase: Your rights, if any, to purchase shares of
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the Common Stock of the Company remain governed by and subject to the
iAsiaWorks, Inc. 2000 Stock Incentive Plan Stock Option Agreement between
you and the Company (the "Stock Option Agreement"). You must exercise any
vested shares within one (1) calendar year of the Separation Date. Except
as described herein, your right, if any, to exercise those shares which
have vested as of the Separation Date shall be subject to and in accordance
with the terms of the Stock Option Agreement(s). All terms of the Stock
Option Agreement(s) remain in full force and effect. Similarly, your
rights, if any under the iAsiaWorks, Inc., Employee Stock Purchase Plan
continue to be governed by the documents governing said iAsiaWorks, Inc.,
Employee Stock Purchase Plan.
6. No Further Compensation: You acknowledge that, except as expressly
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provided in this Agreement, you will not receive any additional salary,
bonuses, vesting of stock options, stock, commissions, other compensation,
severance or benefits from the Company after the Separation Date; provided,
however, that you may be eligible to receive additional compensation, in
the form of cash or stock, for your continued service with the Company as a
member of the Company's Board of Directors.
7. Nondisparagement: You agree not to criticize, denigrate, or disparage the
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Company, any of its employees, representatives, agents, officers,
directors, subsidiaries, affiliated entities, business interests, pursuits,
and products or services.
8. Release of Claims: On behalf of yourself and your heirs and assigns, you
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hereby forever release the Company and its owners, stockholders, parent
corporation[s], affiliates, divisions, subsidiaries, assigns and
affiliates, predecessors, successors, officers, managers, employees,
insurers, representatives and agents from all claims, liabilities, demands,
causes of action, costs, expenses, attorneys fees, damages, indemnity and
obligation of every kind and nature, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in
any way related to agreements, events, acts or conduct at any time prior to
and including the date you sign this Agreement, including but not limited
to all claims based upon contract, tort or statute arising out of, based
upon, or relating to your hire, offer letter, employment, remuneration or
termination from employment with the Company, including any claims arising
under Title VII of the Civil rights Act of 1964, as amended; the Equal Pay
Act, as amended; the Age Discrimination in Employment Act ("ADEA"), as
amended; the Employee Retirement Income Security Act, as amended; the Older
Workers Benefit Protection Act; as amended; the California Fair Employment
and Housing Act, as amended; the California Labor Code, as amended; and/or
any other local, state or federal laws and regulations governing
discrimination in employment, the payment of wages and benefits, and all
other laws and regulations relating to employment. You acknowledge that
your decision to sign this Agreement is knowing and voluntary. This
Agreement does not apply to any claims of age discrimination under ADEA
arising after the date you sign this Agreement, and does not apply to
claims for unemployment insurance or workers' compensation benefits. This
Agreement does not affect your rights, if any, under the Company's 401(k)
plan; nor does is it affect your rights, or those of your eligible
dependents, if any, to health care continuation benefits pursuant to the
Consolidated Omnibus Budget Reconciliation Act (COBRA). The Company,
however, acknowledges and agrees that this release does not apply to,
release, or in any way limit the Company's (including, but not limited to,
its affiliates, subsidiaries, divisions, assigns, and insurers) obligation
to indemnify you for any losses, judgments, settlement payments, attorneys'
fees, court costs, or litigation expenses incurred or sustained by you as a
direct or indirect result of, or arising out of, your employment with the
Company or your service as a member of the
Company's Board of Directors: (a) to the extent such indemnity is available
under the Company's director's and officer's liability insurance policy
(the Company acknowledges the existence of policy # 000-00-00 entered into
with National Union Fire Insurance Company of Pittsburgh, PA (an AIG
company) and policy # ELU 81898-00 entered into with XL USA (Greenwich
Insurance Company)), (b) to the extent such indemnity is authorized by the
Company's articles or by-laws, and (c) to the extent permitted by law. The
Company acknowledges and agrees that its obligation to indemnify you
includes the obligation to advance to you reasonable attorneys' fees, court
costs, and litigation expenses when and as such attorneys' fees and
expenses are incurred by you in the defense of any claim, subpoena,
investigation or civil or criminal action. Furthermore, notwithstanding
anything to the contrary contained in this Agreement, the obligation to
indemnify you and the terms of your Indemnification Agreement with the
Company, dated May 31, 2000 (the "Indemnification Agreement"), shall remain
in full effect so long as you continue to serve as a member of the
Company's Board of Directors and/or you may be subject to litigation or a
claim resulting from your service as an employee or member of the Company's
Board of Directors.
9. General Release. You expressly waive and release any and all rights and
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benefits under Section 1542 of the Civil Code of the State of California
(or any analogous law of any other state), which reads 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.
Furthermore, you and the Company agree and understand that if, hereafter,
they discover facts different from or in addition to those which they now
know or believe to be true, the waivers contained within this Agreement
shall be and remain effective in all respects.
10. Right to Advice of Counsel: You have the right to consult with a lawyer so
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that you are fully aware of your rights and obligations under this
Agreement.
11. Non-Admission. Nothing contained in this letter shall constitute or be
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treated as an admission by you or the Company of liability, of any
wrongdoing, or of any violation of law.
12. Confidential Information and Invention Assignment Agreement;
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Non-Solicitation of Company Employees. At all times in the future, you will
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remain bound by the Company's Proprietary Information and Inventions
Agreement. It is a condition of your eligibility for benefits under
this Agreement that you have signed and delivered to the Company the
Proprietary Information and Inventions Assignment Agreement. You understand
and agree, pursuant to Section F of the Proprietary Information and
Inventions Agreement, that during the term of your employment and for one
(1) year thereafter, you will not encourage or solicit any employee of the
Company to leave the Company for any reason or to accept employment with
any other company, and that as part of this restriction, you agree not to
interview or provide any input to any third party regarding any such person
during the period in question.
13. Sole Agreement. You agree that this Agreement, in addition to the
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Proprietary Information and Inventions Assignment Agreement, the
Indemnification Agreement and the Stock Option Agreement, constitutes an
integration of the entire understanding and agreement between you and the
Company with respect to the matters referred to in this Agreement, the
Proprietary Information and Inventions Assignment Agreement, the
Indemnification Agreement and the Stock Option Agreement. Any
representation, promise or condition, whether written or oral, between you
and the Company with respect to the matters referred to in this Agreement,
which is not specifically incorporated in this Agreement shall not be
binding upon either you or the Company and both you and the Company
acknowledge that neither you nor the Company have relied, in entering into
this Agreement, upon any representations, promises or conditions not
specifically set forth in this Agreement, the Proprietary Information and
Inventions Assignment Agreement and the Stock Option Agreement. No prior
oral or written understanding, covenant or Agreement between you and the
Company, including the Original Agreement, with respect to matters referred
to in this Agreement, shall survive the execution of this Agreement;
provided, however, that Original Agreement may be revived under limited
circumstances pursuant to Paragraph 14 herein. Both you and the Company
assume the risk of any misrepresentation, concealment or mistake, and if
either you or the Company should subsequently discover that any fact relied
upon in entering into this Agreement was untrue, or that any fact was
concealed, or that the understanding of the facts was incorrect, neither
you nor the Company will be entitled to set aside this Agreement by reason
thereof.
14. Condition to Mutual Release of Claims. You and the Company agree that the
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mutual release of claims in Paragraph 8 is conditioned upon your receipt
and retention of the Settlement Payment and other consideration as
contemplated by this Agreement. Specifically, if, and only if, you are
compelled by a judgment or order of a court of competent jurisdiction or in
good faith settlement demand to disgorge, return, or pay over to the
Company or any third-party (if such payment is directly related to the
Settlement Payment) any portion of the Settlement Payment, including but
not limited to any right of repayment arising by operation of any law
relating to avoidable transfers made by those who are the object of any
bankruptcy, receivership, or insolvency proceeding, including any
assignment for the benefit of creditors, any reorganization case under the
bankruptcy laws or any successor thereto ("Bankruptcy"). The parties agree
that
if the releases herein become ineffective, the Company shall once again
recognize the Original Agreement and it shall once again take precedence
over this Agreement, which shall be deemed null and void. Additionally, you
shall be free to pursue any and all claims against the Company in either
litigation or by way of arbitration (unless those claims are required to be
brought in bankruptcy court) and shall be entitled to claim any amounts due
under the Original Agreement.
15. Time to Consider Agreement. You have up to seven (7) calendar days after
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receipt of this letter within which to review it, and to discuss it with an
attorney of your own choosing regarding whether or not you wish to execute
it.
16. Revocation Period. You have seven (7) calendar days after you have signed
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this Agreement during which time you may revoke this Agreement. If you wish
to revoke this Agreement, you may do so by delivering a letter of
revocation to Xxxxxxx Xxxxxx at c/o iAsiaWorks, 0000 Xxxxxxx xx xxx Xxxxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000, during the seven (7) calendar day
revocation period. Because of this revocation period, you understand that
the terms and conditions set forth in this letter shall not become
effective or enforceable until the eighth (8th) calendar day after the date
you sign this letter (the "Effective Date").
17. Severability, Governing Law. If any provision of this Agreement is
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determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement and the
provision in question shall be modified by the court so as to be rendered
enforceable. This Agreement shall be deemed to have been entered into and
shall be construed and enforced in accordance with the laws of the State of
California as applied to contracts made and to be performed entirely within
California.
If this Agreement is acceptable to you, please sign below and return the
original to me. You may keep the enclosed copy.
I thank you for your efforts on behalf of iAsiaWorks, Inc. and wish you luck in
your future endeavors.
Sincerely,
IASIAWORKS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Secretary and General Counsel
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My agreement with the above terms is signified by my signature below.
Furthermore, I acknowledge that I have read and understand this letter, have
been advised to discuss it with an attorney of my own choosing, and that I sign
this release of all claims voluntarily, with and full appreciation.
Dated: October 12, 2001 /s/ Xxx X. Xxxxxx
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Employee Name
