TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") is entered into as of this
20th day of May, 1997, between Think New Ideas, Inc., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxx, an individual, resident in Boulder, Colorado
(the "Employee").
WITNESSETH:
WHEREAS, the Company and the Employee are parties to a certain
employment agreement dated as of June 30, 1996 (the "Employment Agreement"); and
WHEREAS, it is the desire of the Company and the Employee to terminate
the Employee's employment with the Company upon the terms and subject to the
conditions set forth herein; and
WHEREAS, it is the desire of the Company and the Employee to terminate
the Employment Agreement upon the terms and subject to the conditions set forth
herein.
NOW THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements contained herein and for such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, each intending to be legally bound hereby, agree as follows:
1. TERMINATION OF EMPLOYMENT AND EMPLOYMENT AGREEMENT. The Employee and
the Company hereby agree that as of the date hereof the Employee's employment
with the Company be and hereby is terminated. Further, any offices, positions,
directorships or other like capacities held by Employee with the Company or any
of its affiliates or subsidiaries be and hereby are resigned by Employee as of
the date hereof. The Employment Agreement be and hereby is terminated, including
without limitation Sections 2, 3, 4, and 5 thereof, but excluding Sections 10
through 15 and Section 17 thereof, which sections shall specifically survive
termination as hereinafter set forth.
2. TERMINATION PAYMENT; TRANSFER OF COMPUTER. Concurrent with the
execution of this Agreement by the parties hereto;
(a) the Company shall remit to the Employee the amount of thirty
thousand dollars ($30,000), payable by cashier's or official bank check; and
(b) the Company shall transfer to Employee that certain laptop
computer, more specifically described as an NEC model
Versa-6030-H-PC-6220-91753, Serial Number 66022928, currently the property of
the Company but in the possession of Employee, and such computer shall hereafter
be deemed to be the property of Employee.
3. STOCK OPTIONS. Those incentive stock options ("Stock Options") granted
by the Company to Employee pursuant to the Company's 1997 Stock Option Plan (the
"Stock Option Plan"), evidenced by an Incentive Stock Option Certificate and
Agreement dated February 10, 1997 by and between the Company and Employee (the
"Option Agreement") as to an aggregate of forty-one thousand eight hundred
eighty-one (41,881) unregistered shares of common stock of the Company ("Common
Stock"), shall be modified hereby as follows:
a) VESTING AND EXERCISE. Stock Options to acquire up to 10,470 shares
of Common Stock, exercisable commencing in September 1997, shall be deemed to be
fully vested and exercisable as of the date hereof, at the prices and upon the
other terms set forth in the Option Agreement and the Stock Option Plan;
PROVIDED, HOWEVER, notwithstanding anything contained in the Employment
Agreement or in the Stock Option Plan, in the event Employee elects to exercise
any such vested Stock Options, payment of the exercise price therefore shall be
paid to the Company solely in cash, by cashier's check or official bank check.
All Stock Options granted to the Employee under the Option Agreement which have
not vested or become exercisable as of the date hereof or pursuant hereto shall
be deemed to have expired unexercised and shall be, after the date hereof, null
and void.
b) TERMINATION OF OPTIONS. Notwithstanding anything contained elsewhere
herein, in the Employment Agreement or in the Stock Option Plan, the period
during which the Stock Options may be exercised shall terminate ninety (90) days
after the date hereof. After such ninety (90) day period, the Option Agreement
shall be null and void.
4. NON-COMPETITION. As set forth hereinabove, the terms of the
non-competition provisions set forth in Section 10 of the Employment Agreement,
as further elaborated by Sections 12 and 15 of the Employment Agreement, shall
survive the termination of the Employment Agreement and remain in full force and
effect, and shall be deemed to be a part of this Agreement as if set forth in
their entirety herein, and are hereby incorporated herein by this reference;
PROVIDED, HOWEVER, the period during which the restrictions contemplated by
Section 10 of the Employment Agreement are applicable shall expire on December
31, 1997; and, FURTHER PROVIDED, that such provision shall not be construed to
prevent the Employee from accepting a job (and performing his obligations) as an
employee of Sun Microsystems, Inc.
5. CONFIDENTIAL INFORMATION. As set forth hereinabove, the terms of the
confidential information provisions set forth in Section 11 of the Employment
Agreement, as further elaborated by Sections 12 and 15 of the Employment
Agreement, shall survive the termination of the Employment Agreement and remain
in full force and effect, and shall be deemed to be a part of this Agreement as
if set forth in their entirety herein, and are hereby incorporated herein by
this reference; PROVIDED, HOWEVER, the period during which the restrictions
contemplated by Section 11 of the Employment Agreement are applicable shall
expire on December 31, 1997.
6. RELEASE OF CLAIMS. a) The Employee and any or all persons or entities
acting on his behalf, or who might claim through him, hereby agree to
compromise, release, and forever discharge and hereby compromise, release and
forever discharge the Company, and all of its successors, predecessors, assigns,
affiliates, shareholders, officers, directors, principals, employees, agents,
servants, spouses, legal representatives, and all other persons who might be
liable through them, their successors and assigns (collectively, the "Company
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Parties") of and from any and all claims, debts, liabilities, assessments,
obligations, demands, actions, causes of action or suits at law or in equity, of
whatever kind or nature, for or because of any matter or thing done, omitted or
suffered to be done by them, or their shareholders, officers, directors,
principals, agents or employees, occurring or arising from the beginning of time
through the date hereof, and particularly with respect to any claim arising
from, referring to, relating to, or in connection with the Employment Agreement
and the termination thereof and the Agreement and Plan of Reorganization dated
as of June 30, 1996 by and between Employee and the Company. The Employee agrees
and covenants not to xxx or bring any action in law or in equity, including, but
not limited to, an action in any court, forum, or arbitration proceeding whether
by original process or demand, counterclaim, cross-claim, third-party process,
impleader, claim for indemnity or contribution or otherwise against the Company
or any of the Company Parties, arising from, referring to, relating to, or in
connection with, the Employment Agreement and the termination thereof; PROVIDED,
HOWEVER, that the parties hereto may initiate any action required to enforce
this Agreement in accordance with its terms. It is understood and agreed that
the release and covenant not to xxx herein are a full and final general release
and covenant not to xxx from Employee which covers any and all future damages
not now known to Employee which may later develop or be discovered, arising
from, referring to, relating to, or in connection with the Employment Agreement
and the termination thereof, except that this Section 6 does not cover any
damages or claims which may arise solely as a result of a breach by a party of
any provision of this Agreement or any damages or claims which may arise as a
result of a claim or threatened claim by an unaffiliated third party.
b) The Company and any or all persons or entities acting on its behalf,
or who might claim through it, hereby agree to compromise, release, and forever
discharge and hereby compromise, release and forever discharge the Employee, and
all of his successors, predecessors, assigns, affiliates, employees, agents,
servants, spouses, legal representatives, and all other persons who might be
liable through them, their successors and assigns (collectively, the "Employee
Parties") of and from any and all claims, debts, liabilities, assessments,
obligations, demands, actions, causes of action or suits at law or in equity, of
whatever kind or nature, for or because of any matter or thing done, omitted or
suffered to be done by them, or their shareholders, officers, directors,
principals, agents or employees, occurring or arising from the beginning of time
through the date hereof, and particularly with respect to any claim arising
from, referring to, relating to, or in connection with, the Employment Agreement
and the termination thereof. The Company agrees and covenants not to xxx or
bring any action in law or in equity, including, but not limited to, an action
in any court, forum, or arbitration proceeding whether by original process or
demand, counterclaim, cross-claim, third-party process, impleader, claim for
indemnity or contribution or otherwise against the Employee or any of the
Employee Parties, arising from, referring to, relating to, or in connection
with, the Employment Agreement and the termination thereof; PROVIDED, HOWEVER,
that the parties hereto may initiate any action required to enforce this
Agreement in accordance with its terms. It is understood and agreed that the
release and covenant not to xxx herein are a full and final general release and
covenant not to xxx from Company which covers any and all future damages not now
known to Company which may later develop or be discovered, arising from,
referring to, relating to, or in connection with the Employment Agreement and
the termination thereof, except that this Section 6 does not cover any damages
or claims which may arise solely as a result of a breach by a party of any
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provision of this Agreement or any damages or claims which may arise as a result
of a claim or threatened claim by an unaffiliated third party.
7. APPROVALS. This Agreement has received all required board of directors
and other corporate approvals. This Agreement, upon execution by the parties
hereto, shall be a valid, legally binding and existing agreement of the
respective parities, enforceable against each in accordance with its terms.
8. SEVERABILITY. The provisions of this Agreement shall be considered
severable in the event that any of such provisions are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable. Such
invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
9. ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the provisions
incorporated herein by reference, constitutes the entire agreement between the
Company and the Employee with respect to the subject matter hereof. This
Agreement may not be amended, changed, modified or discharged, nor may any
provision hereof be waived, except by an instrument in writing executed by or on
behalf of the party against whom enforcement of any amendment, waiver, change,
modification or discharge is sought. No course of conduct or dealing shall be
construed to modify, amend or otherwise affect any of the provisions hereof.
10. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
physically delivered, delivered by express mail, or other expedited service or
upon receipt if mailed, postage prepaid, via first class mail. as follows:
a) If to the Company: Think New Ideas, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: President
with an additional
copy by like means to: De Xxxxxxx Xxxxxxxxxxx Xxxxx & Xxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xx Xxxxxxx, Esquire
b) If to the Employee: Xx. Xxxxx X. Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
with an additional
copy by like means to: Xxxx, Freemen & Xxxxxx
0000 Xxxxx Xxxx Xxxxx, Xxxxx X
Xxxxxxx, XX 00000
Attention: Xxx Xxxx, Esquire
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11. ASSIGNABILITY. Except as otherwise set forth herein, this Agreement
shall not be assignable by either party hereto, but shall be binding upon and
shall inure to the benefit of the heirs, executors, administrators, successors
and legal representatives of each such party.
12. GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of Delaware, without regard to the principles of conflicts
of laws thereof.
13. WAIVER AND FURTHER AGREEMENT. Any waiver of any breach of the terms or
conditions of this Agreement shall not operate as a waiver of any other breach
of such terms or conditions or any other term or condition hereof, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
14. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THINK NEW IDEAS, INC.
/s/ Xxxxx Xxxxxxx
--------------------------------------
By: Xxxxx Xxxxxxx, Chief Executive Officer
THE EMPLOYEE
By: /s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
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