Exhibit 10.26
RESIGNATION AND MUTUAL RELEASE AGREEMENT
This Resignation and Mutual Release Agreement (the "Agreement") is made
by and between Interlink Computer Sciences, Inc., a California corporation (the
"Company") and Xxxxxxx X. Xxxxxx ("Xxxxxx").
WHEREAS, Xxxxxx has been employed by the Company;
WHEREAS, in connection with Xxxxxx'x resignation as an officer and
director of the Company, Xxxxxx and the Company have mutually agreed to continue
Xxxxxx'x pre-existing employment relationship with the Company with a
predetermined future employment termination date;
NOW, THEREFORE, in consideration of the mutual promises made herein,
Xxxxxx and the Company (collectively referred to as the "Parties") hereby agree
as follows;
1. Resignations. Xxxxxx hereby resigns as of May 22, 1997 (the
"Effective Date") as a director and an officer of the Company, and as a director
and officer of any of the Company's subsidiaries.
2. Employment and Duties. During the Employment Period (as defined in
Section 3 below), Xxxxxx will continue to serve as an employee of the Company.
The duties and responsibilities of Xxxxxx shall include the duties and
responsibilities as determined by mutual agreement between the Company and
Xxxxxx. Xxxxxx shall perform faithfully all duties assigned to him during the
Employment Period to the best of his ability. Xxxxxx'x salary and benefits shall
continue as in effect prior to the Effective Date until termination of his
employment.
3. Termination.
(a) The Employment Period shall begin upon the Effective Date
and shall expire at 5:00 p.m., California time, on November 21, 1997 (the
"Termination Date") unless sooner terminated pursuant to the provisions of this
Agreement. The period from the Effective Date until the Termination Date is
referred to herein as the "Employment Period." The period from the Termination
Date until 5:00 p.m., California time on May 21, 1998 is referred to herein as
the "Severance Period."
(b) Early Termination. The Company may terminate Xxxxxx'x
employment for Cause (as defined in Section 3(d)) at any time during the
Employment Period and may terminate the payment of Severance (as defined in
Section 5) and Benefits (as defined in Section 6) at any
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time during the Severance Period for Cause. Xxxxxx may terminate his employment
at any time prior to the end of the Employment Period. Except as set forth in
this Agreement, no compensation, benefits or other consideration will be paid or
provided to Xxxxxx on account of a termination for Cause or for periods
following the date when such a termination is effective. Xxxxxx'x rights under
the benefit plans of the Company following a termination for Cause shall be
determined under the provisions of those plans.
(c) Death. The Company shall have no obligation to pay or
provide any compensation or benefits under this Agreement on account of Xxxxxx'x
death. Xxxxxx'x rights under the benefit plans of the Company in the event of
Xxxxxx'x death prior to the Termination Date shall be determined under the
provisions of those plans.
(d) Cause. For all purposes under this Agreement, "Cause"
shall mean (i) willful failure by Xxxxxx to perform his duties hereunder, (ii) a
willful act by Xxxxxx which constitutes gross misconduct and which is injurious
to the Company, (iii) a willful breach by Xxxxxx of a material provision of this
Agreement, (iv) a material violation of a federal, state, or foreign law or
regulation applicable to the business of the Company, or (v) Xxxxxx'x full-time
employment (i.e. greater than 80 hours per month of employment or consulting
services) with another entity, all as determined in good faith by the Company.
No act or failure to act by Xxxxxx shall be considered "willful" unless
committed without good faith without a reasonable belief that the act or
omission was in the Company's best interest.
4. Vesting Under Stock Option Agreement. The parties acknowledge that
the vesting of the stock options previously granted to Xxxxxx under the
Company's stock plans will continue to the extent the options would otherwise
become exercisable through the termination of Xxxxxx'x employment. In accordance
with the terms of such options, Xxxxxx shall have until 30 days following
termination of employment to exercise the vested portions thereof. There shall
be no further vesting of any stock options previously granted to Xxxxxx under
the Company's stock plans following termination of employment.
5. Severance Payments. The Company agrees to pay Xxxxxx xxxxxxxxx at
the current base salary of $16,646 per month ("Severance"), to be automatically
deposited per the Company's existing payroll policy through the Severance Period
or until Xxxxxx is terminated for Cause, whichever occurs earlier. The parties
understand and agree that the Severance will be reduced by all necessary and
appropriate taxes (e.g., payroll, withholding for Federal and State taxes, FICA,
etc.) which the Company has the obligation of retaining.
6. Benefits. Following the Employment Period, the Company shall
continue to make coverage available to Xxxxxx and his dependents under the
Company's group health and dental plans and shall make all payments under such
plans which would have otherwise been paid by Xxxxxx through the Severance
Period, and thereafter to the extent required by COBRA ("Health Coverage"). The
Company shall also pay outplacement costs incurred by Xxxxxx up to $10,000
(together with Health Coverage, the "Benefits").
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7. Confidential Information. Xxxxxx agrees to immediately return to the
Company all of the Company's property and confidential and proprietary
information in his possession as of the termination of his employment, and
agrees not to use or disclose any such information without the prior written
consent of the Company. The limitations described in this Section 7 are in
addition to any similar limitations to which Xxxxxx is subject based on other
legal or contractual obligations.
8. Xxxxxxx Xxxxxxx. During the Employment Period, Xxxxxx and the
Company agree that Xxxxxx shall be subject to the restrictions and obligations
of the Company's Xxxxxxx Xxxxxxx Policy, as amended from time to time, a copy of
which is in Xxxxxx'x possession.
9. California Labor Code. Assuming the payments of the above severance
amounts, California Labor Code section 206.5 will not be applicable to the
parties hereto. Said section provides in pertinent part:
NO EMPLOYER SHALL REQUIRE THE EXECUTION OF ANY RELEASE OF
ANY CLAIM OR RIGHT ON ACCOUNT OF WAGES DUE, OR TO BECOME
DUE, OR MADE AS AN ADVANCE ON WAGES TO BE EARNED, UNLESS
PAYMENT OF SUCH WAGES HAS BEEN MADE.
10. Release of Claims. Xxxxxx agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Xxxxxx by
the Company. The Company and Xxxxxx, on behalf of themselves and their
respective heirs, executors, officers, directors, employees, investors,
shareholders, administrators, predecessor and successor corporations, and
assigns, hereby fully and forever release each other and their respective heirs,
executors, officers, directors, employees, investors, shareholders,
administrators, predecessor and successor corporations, and assigns, of and from
any claim, duty, obligation or cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected, that any of
them may possess arising from any omissions, acts or facts that have occurred up
to and including the Effective Date including, without limitation:
(a) any and all claims relating to or arising from Xxxxxx'x
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from Xxxxxx'x
right to purchase shares of stock of the Company;
(c) any and all claims for wrongful discharge of employment;
breach of contract, both express and implied breach of the covenant of good
faith and fair dealing, both express and implied; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; defamation; violation of any federal, state or municipal law
including, but not limited to, any claims for violation of Title VII of the
Civil rights Act of 1964, any and all claims for violation of the Age
Discrimination in Employment Act of 1967, and any and all claims for violation
of the California Fair Employment and Housing Act;
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(d) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(e) any and all claims for attorneys' fees and costs.
The Company and Xxxxxx agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
11. Acknowledgment of Waiver of Claims under ADEA. Xxxxxx 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. Xxxxxx 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. Xxxxxx acknowledges that the
consideration given for this waiver and release is in addition to anything of
value to which Xxxxxx was already entitled. Xxxxxx 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 twenty-one (21) days
within which to consider this Agreement; (c) he has at least seven (7) days
following the execution of this Agreement by the Parties to revoke the
Agreement; and (d) this Agreement shall not be effective until the revocation
period has expired.
12. Civil Code Section 1542. The parties represent that they are not
aware of any claim by either of them other than the claims that are released by
this Agreement. The Company and Xxxxxx acknowledge that they are familiar with
the provisions of California Civil Code Section 1542 which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
The Company and Xxxxxx, being aware of said section, agree to expressly
waive any rights that they may have thereunder, as well as under any other
statute or common law principles of similar effect.
13. Confidentiality. Except as required by law, the parties hereto each
agree to use their best efforts to maintain in confidence the existence of
contents and terms of, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). Each party hereto agrees
to take every precaution to prevent disclosure of any Settlement Information to
third parties, and each agrees that there will be no publicity, directly or
indirectly, concerning any Settlement Information. The parties hereto agree to
take every precaution to disclose Settlement Information only to those
employees, officers, directors, attorneys, accountants and family members who
have a reasonable need to know of such Settlement Information.
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14. No Disparagement. Except as required by law, Xxxxxx agrees that as
of the Effective Date, he will not comment on the Company or any of its
affiliates or employees, directors, outside consultants or any other parties
financially related thereto and upon any inquiries made to Xxxxxx, whether
directly or indirectly, relating to such parties, Xxxxxx will refer such
inquiries to the Company's Chief Financial Officer.
15. Indemnification. The Company agrees that nothing in this Agreement
will affect Xxxxxx'x rights to indemnification pursuant to Labor Code Section
2902 or the Company's Certificate of Incorporation or Bylaws.
16. No Admissions. The parties understand and acknowledge that this
Agreement constitutes a compromise and settlement of claims. No action taken by
the parties hereto, or either of them, either previously or in connection with
this Agreement shall be deemed or construed to be (a) an admission of the truth
or falsity of any claims heretofore made, or (b) an acknowledgment or admission
by either party of any fault or liability whatsoever to the other party or to
any third party.
17. Costs. The parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
18. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Xxxxxx represents and warrants that he has the capacity to act on his own behalf
and on behalf of all who might claim through him to bind him to the term and
conditions of this Agreement. Each party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or otherwise of or
against any of the claims or causes of action released herein.
19. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied on any representations or statements made by the other party hereto which
are not specifically set forth in this Agreement.
20. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable, or
void, this Agreement shall continue in full force and effect without said
provision.
21. Entire Agreement. This Agreement represents the entire agreement
and understanding between the parties concerning Xxxxxx'x separation from the
Company and supersedes and replaces any and all prior agreements and
understandings concerning Xxxxxx'x relationship with the Company and his
compensation by the Company.
22. No Oral Modification. This Agreement may only be amended in writing
signed by the parties.
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23. Governing Law. This Agreement shall be governed by the laws of the
State of California.
24. Effective Date. This Agreement is effective seven (7) days after it
has been signed by both parties.
25. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
26. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the parties hereto, with full intent of releasing all claims, and the parties
acknowledge that:
(a) They have read the Agreement;
(b) The have been represented in the preparation,
negotiations, and execution of this Agreement by legal counsel of their own
choice or that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains; and
(d) They are fully aware of the legal and binding effect of
this Agreement.
IN WITNESS THEREOF, the parties have executed or caused to be executed
by an authorized officer this Agreement on the respective dates set forth below.
XXXXXXX X. XXXXXX INTERLINK COMPUTER SCIENCES, INC.
By: By:
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Dated: Dated:
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