EXHIBIT 10.41
SETTLEMENT AND RELEASE AGREEMENT
December 12, 2002
Dear Xxx:
This Settlement and Release Agreement (the "Agreement") sets forth the terms and
conditions of our agreement regarding the termination of your employment with
First Virtual Communications, Inc. (the "Company"). Pursuant to Section 12
herein, the Agreement shall become effective on the eighth day after this
Agreement is signed by you (the "Effective Date"). You and the Company hereby
agree as follows:
1. SEPARATION DATE. Your employment as the Company's Chief Financial
Officer, Senior Vice President of Finance and Treasurer is terminated effective
December 12, 2002 (the "Separation Date"). You also agree to resign as a
director and officer of all subsidiaries of the Company for which you serve as a
director or officer, effective as of the Separation Date.
2. ACCRUED SALARY AND VACATION. You agree and acknowledge that the Company
has paid you all accrued salary, and all accrued and unused vacation benefits
earned through the Separation Date, if any, subject to standard payroll
deductions, withholding taxes and other obligations.
3. EXPENSE REIMBURSEMENT. Within ten (10) business days of your execution
of this Agreement, you agree that you will submit your final documented expense
reimbursement statement reflecting all business expenses you incurred prior to
and including the Separation Date, if any, for which you seek reimbursement. The
Company shall reimburse your expenses pursuant to Company policy and regular
business practice.
4. SEVERANCE. You acknowledge and agree that, following the Effective
Date, in accordance with the terms of Section 4 of the Offer Letter between you
and the Company dated as of January 4, 2002 (the "Employment Agreement"), and in
consideration of the release of claims in Sections 11,12 and 13 herein, the
Company will provide you with the following: (i) continuation of your current
base salary, payable in bi-weekly installments for a six (6) month period,
subject to standard deductions and withholdings; (ii) subject to the approval of
the Company's Board of Directors (the "Board"), the post-termination exercise
period for each of the outstanding stock options granted to you by the Company
that were vested as of the Separation Date (the "Vested Options") shall be
extended to (90) days following the Separation Date, that is, to March 12, 2003,
and (iii) to the extent provided by the federal COBRA law and by the Company's
current group health insurance policies, you will be eligible to continue your
health insurance benefits. Later, you may be able to convert to an individual
policy through the provider of the Company's health insurance, if you wish. You
will be provided with a separate notice of your COBRA rights. In the event that
you are eligible for, and elect, continued
coverage under COBRA, the Company, as part of this Agreement, will pay in full
for your COBRA coverage at the same level of coverage that you elected prior to
the Separation Date (if such coverage included your spouse and/or dependents
immediately prior to the Separation Date, your spouse and/or dependents will
also be covered), until the earlier of June 12, 2003 or the date you and your
spouse and/or dependents become covered under another employer's group health
plan that provides you and your spouse and/or dependents with comparable
benefits and levels of coverage (the earlier date being the "Termination Date").
Subsequent to the Termination Date, you will be solely responsible for full
payment of your COBRA insurance premiums.
5. STOCK OPTIONS. You understand and agree that all vesting under any
outstanding stock compensation award you may hold from the Company shall cease
on the Separation Date. Except as set forth in Section 4(ii) above, your rights
to exercise your outstanding stock options as to any vested shares remains as
set forth under the Company's equity incentive plans and your Stock Option
Agreements. Subject to Board approval of the extension of the post-termination
exercise period for the Vested Options, in the event that the Vested Options are
not exercised by you on or prior to March 12, 2003, they will terminate. You
understand and acknowledge that the extension of the post-termination exercise
period for the Vested Options (if approved by the Board) may alter the status of
the Vested Options from incentive to non-qualified stock options. You understand
and agree that you assume full responsibility for and you agree to indemnify the
Company against any and all tax liability you may incur as a result of the
extended exercise period for the Vested Options.
6. OTHER COMPENSATION AND BENEFITS. Except as expressly provided herein,
you acknowledge and agree that you are not entitled to and will not receive any
additional compensation, severance, stock options, stock or benefits from the
Company.
7. COMPANY PROPERTY. You agree to immediately return to the Company all
Company documents (and all copies thereof) and other Company property in your
possession or your control, including, but not limited to, Company files,
business plans, notes, samples, sales notebooks, drawings, specifications,
calculations, sequences, data, computer-recorded information, tangible property,
including, but not limited to, cellular phones, computers, credit cards, calling
cards, entry cards, keys and any other materials of any nature pertaining to
your work with the Company, and any documents or data of any description (or any
reproduction of any documents or data) containing or pertaining to any
proprietary or confidential material of the Company.
8. PROPRIETARY INFORMATION OBLIGATIONS. You acknowledge your continuing
obligations under your Employee Proprietary Information and Inventions
Agreement, a copy of which is attached hereto as EXHIBIT A.
9. NON-DISPARAGEMENT. You and the Company's officers and directors agree
not to disparage the other party, nor the other party's officers, directors,
employees, stockholders and agents, in any manner likely to be harmful to them
or their business, business reputation or personal reputation; provided that
both you and the Company may respond accurately and fully to any question,
inquiry or request for information when required by legal process.
2.
10. CONFIDENTIALITY AND PUBLICITY. The provisions of this Agreement shall
be held in strictest confidence by you and the Company and shall not be
publicized or disclosed in any manner whatsoever; provided, however, that: (a)
you may disclose this Agreement, in confidence, to your immediate family; (b)
the parties may disclose this Agreement in confidence to their respective
attorneys, accountants, auditors, tax preparers, and financial advisors; (c) the
Company may disclose this Agreement as necessary to fulfill standard or legally
required corporate reporting or disclosure requirements; and (d) the parties may
disclose this Agreement insofar as such disclosure may be necessary to enforce
its terms or as otherwise required by law.
11. RELEASE OF CLAIMS. In exchange for the consideration provided to you by
this Agreement that you are not otherwise entitled to receive, you hereby
generally and completely release the Company and its directors, officers,
employees, stockholders, partners, agents, attorneys, predecessors, successors,
parent and subsidiary entities, insurers, affiliates, and assigns from any and
all claims, liabilities and obligations, both known and unknown, that arise out
of or are in any way related to events, acts, conduct, or omissions occurring
prior to your signing this Agreement. This general release includes, but is not
limited to: (1) all claims arising out of or in any way related to your
employment with the Company, including its predecessors, successors, parent and
subsidiary entities, or the termination of that employment; (2) all claims
related to your compensation or benefits from the Company, including salary,
bonuses, commissions, vacation pay, expense reimbursements, severance pay,
fringe benefits, stock, stock options, or any other ownership interests in the
Company; (3) all claims for breach of contract, wrongful termination, and breach
of the implied covenant of good faith and fair dealing; (4) all tort claims,
including claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (5) all federal, state, and local statutory
claims, including claims for discrimination, harassment, retaliation, attorneys'
fees, or other claims arising under the federal Civil Rights Act of 1964 (as
amended), the federal Americans with Disabilities Act of 1990, the federal Age
Discrimination in Employment Act of 1967 (as amended) ("ADEA"), and the
California Fair Employment and Housing Act (as amended).
12. ADEA WAIVER. You further acknowledge that you are knowingly and
voluntarily waiving and releasing any rights you may have under the Age
Discrimination in Employment Act of 1967 ("ADEA"). You also acknowledge that the
consideration given for the waiver and release in the preceding paragraphs
hereof is in addition to anything of value to which you were already entitled.
If you are forty (40) years of age or older when this release is signed, you
hereby provide the further acknowledgment that you are advised by this writing,
as required by the Older Workers Benefit Protection Act, that: (a) your waiver
and release do not apply to any rights or claims that may arise after the
Effective Date of this release; (b) you have the right to consult with an
attorney prior to executing this release (although you may voluntarily choose
not to do so); (c) you may have twenty-one (21) days to consider this Agreement
(although you may by your own choice execute this release earlier); (d) you have
seven (7) days following the execution of this release to revoke this release;
and (e) this Agreement shall not be effective until the date upon which the
revocation period has expired, therefore making the Effective Date the eighth
day after this release is signed by you.
13. UNKNOWN CLAIMS WAIVER. In giving the release in Sections 11 and 12
above, which includes claims which may be unknown to me at present, I hereby
acknowledge that I have read and understand Section 1542 of the Civil Code of
the State of California which reads as follows:
3.
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.
I hereby expressly waive and relinquish all rights and benefits under this
section and any law or legal principle of similar effect in any jurisdiction
with respect to claims released hereby.
14. NO ADMISSIONS. The parties hereto hereby acknowledge that this is a
compromise settlement of various matters, and that the promised payments in
consideration of this Agreement shall not be construed to be an admission of any
liability or obligation by either party to the other party or to any other
person whomsoever.
15. ENTIRE AGREEMENT. This Agreement, including Exhibit A and Section 4 of
the Employment Agreement, constitute the complete, final and exclusive
embodiment of the entire Agreement between you and the Company with regard to
the subject matter hereof. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein. It
may not be modified except in a writing signed by you and a duly authorized
officer of the Company. Each party has carefully read this Agreement, has been
afforded the opportunity to be advised of its meaning and consequences by his or
its respective attorneys, and signed the same of his or its free will. Except as
specifically provided herein, the Employment Agreement will no longer have any
force or effect as of the Separation Date.
16. SUCCESSORS AND ASSIGNS. This Agreement shall bind the heirs, personal
representatives, successors, assigns, executors, and administrators of each
party, and inure to the benefit of each party, its agents, directors, officers,
employees, servants, heirs, successors and assigns.
17. APPLICABLE LAW. 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.
18. ATTORNEYS' FEES. In the event of any litigation arising out of or
relating to this Agreement, its breach or enforcement, including an action for
declaratory relief, the prevailing party in such action or proceeding shall be
entitled to receive his or its damages, court costs, and all out-of-pocket
expenses, including attorneys fees. Such recovery shall include court costs,
out-of-pocket expenses, and attorneys fees on appeal, if any.
19. SEVERABILITY. If a court of competent jurisdiction determines that any
term or provision of this Agreement is invalid or unenforceable, in whole or in
part, then the remaining terms and provisions hereof shall be unimpaired. Such
court will have the authority to modify or replace the invalid or unenforceable
term or provision with a valid and enforceable term or provision that most
accurately represents the parties' intention with respect to the invalid or
unenforceable term or provision.
20. INDEMNIFICATION. Each party will indemnify and save harmless each other
party hereto from any loss incurred directly or indirectly by reason of the
falsity or inaccuracy of any representation made herein.
4.
21. AUTHORIZATION. 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 and, further, that
you are fully entitled and duly authorized to give your complete and final
general release and discharge.
22. COUNTERPARTS. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, all of which together shall constitute one
and the same instrument.
23. SECTION HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Please confirm your assent to the foregoing terms and conditions of this
Agreement by signing and returning a copy of this letter to me within twenty-one
(21) days of the date hereof.
Sincerely,
FIRST VIRTUAL COMMUNICATIONS, INC.
XXXXXXXX XXXXXX
ACTING PRESIDENT AND CHIEF EXECUTIVE OFFICER
Attachments:
Exhibit A - Employee Proprietary Information and Inventions Agreement
HAVING READ AND REVIEWED THE FOREGOING, I HEREBY AGREE TO AND ACCEPT THE TERMS
AND CONDITIONS OF THIS AGREEMENT AS STATED ABOVE.
Dated: ________________ _______________________________
XXXXXXX X. XXXXXX
5.
EXHIBIT A
EMPLOYEE PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT
