Exhibit 10.93
GENERAL RELEASE AND SETTLEMENT AGREEMENT
This General Release and Settlement Agreement (hereinafter
"Agreement") is made and entered into in Campbell, California by and between
Xxxxx X. Xxxxxxx (hereinafter "EMPLOYEE") and P-Com, Inc. (hereinafter
"EMPLOYER") on April , 2002 as of January 10, 2002. (EMPLOYEE and EMPLOYER are
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sometimes hereinafter referred to collectively as the "Parties.")
RECITALS
A. EMPLOYEE was for a period of time an employee and member of the Board of
Directors of EMPLOYER;
B. EMPLOYEE's employment with EMPLOYER terminated January 10, 2002 and
EMPLOYEE's resignation from the Board of Directors of EMPLOYER was effective
January 10, 2002;
C. EMPLOYEE and EMPLOYER agree that EMPLOYEE has already been paid in full
all amounts due to him for salary and Paid Time Off accrued through January 10,
2002;
D. EMPLOYEE and EMPLOYER wish to resolve permanently and amicably any and
all disputes arising or which may ever arise out of EMPLOYEE's employment with
and membership of the Board of Directors of EMPLOYER.
NOW, THEREFORE, for and in consideration of the mutual agreements contained
in the following paragraphs, EMPLOYER and EMPLOYEE agree as follows:
1. Additional Benefits. EMPLOYER agrees to give to EMPLOYEE the following
consideration:
a. Payments equivalent to a continuation of his salary, at the rate of
$[*] per annum (less applicable employee contributions for health insurance and
employment and income tax withholding) in equal installments, from January 12,
2002 through July 10, 2003. Such payments shall be made on the dates of
EMPLOYER's standard biweekly salary payment dates. If any such payment date has
passed before this Agreement is signed, the missed payment or payments shall be
made on or before the following standard biweekly salary payment date. The
payments called for by this subsection (a) [*]. However, any of these payments
will immediately terminate in the event you fail to abide by the obligations in
Section 2 of this Agreement.
b. If approved by the Board of Directors of EMPLOYER following the end
of the calendar year 2002, your annual target bonus for 2002 pro rated as of
January 10, 2002.
[*] Confidential treatment requested
c. The parties acknowledge that EMPLOYEE is indebted to EMPLOYER in
the amount of $250,000 as evidenced by that certain Promissory Note dated May 3,
2000 issued by EMPLOYEE in favor of EMPLOYER. EMPLOYER and EMPLOYEE have agreed
to modify the principle amount and EMPLOYEE's terms of repayment of the May 3,
200 Promissory Note as evidenced by the new note attached hereto and executed of
even date herewith (the "April 2002 Promissory Note"). [*]
d. EMPLOYER shall pay on EMPLOYEE's behalf, for the period from
January 12, 2002 through [*], the required premium (less employee contribution)
for COBRA benefits coverage for EMPLOYEE and eligible dependents at the same
level of COBRA-eligible benefits (exclusive of any supplemental benefits which
in the past were purchased with voluntary cafeteria plan contributions) as
EMPLOYEE and eligible dependents had had on January 11, 2002. (With respect to
supplemental benefits which have in the past been purchased with voluntary
cafeteria plan contributions, EMPLOYEE shall have the right, at his own
discretion and expense, to continue to fund them under COBRA. If EMPLOYEE
wishes, he may make such COBRA payments directly to EMPLOYER. In the
alternative, he may make such COBRA payments through voluntary cafeteria plan
contributions made between January 12, 2002 and [*], but only if (i) EMPLOYER's
cafeteria plan does not prohibit such continued contributions and (ii) the
contributions are made at EMPLOYEE's express request by deduction from the
subsection (a) biweekly payments. However, it is acknowledged that any such
voluntary cafeteria plan contributions made between January 12, 2002 and [*]
shall not be tax deductible by EMPLOYEE under Internal Revenue Code Section
125.) Nonetheless, if before [*] EMPLOYEE commences new employment with
equivalent or better benefits coverage, he agrees to inform EMPLOYER
immediately, and thereafter EMPLOYER shall no longer be required to make the
payments called for by this subsection (c). It is agreed that after EMPLOYER's
payments under this subsection (c) end, EMPLOYEE shall have the right, at his
own discretion, expense and risk to continue or not to continue his and eligible
dependents' COBRA benefits through [*] , as provided by law. It is acknowledged
that EMPLOYEE cannot contribute to EMPLOYER's 401(k) plan or participate in
EMPLOYER's employee stock purchase plan after January 10, 2002.
e. Notwithstanding the cessation of EMPLOYEE's service, EMPLOYEE's (i)
unvested options to purchase common stock of EMPLOYER shall continue to vest and
(ii) those options in (i) plus options already vested as of January 10, 2002,
shall be exercisable in accordance with EMPLOYERS 1995 Stock Option/Stock
Issuance Plan from January 10, 2002, through [*]. EMPLOYEE does not hold or have
any right to receive any other EMPLOYER stock options, or have any right to
receive any other EMPLOYER stock.
[*] Confidential treatment requested
2. Secrecy and Non-disparagement. EMPLOYEE promises and agrees that, unless
compelled by legal process or otherwise required by law, EMPLOYEE will not
disclose to others and will keep confidential the terms of this Agreement,
including the amounts referred to in this Agreement, except that EMPLOYEE may
disclose this information to EMPLOYEE's spouse and to EMPLOYEE's attorneys,
accountants and other professional advisors to whom the disclosure is necessary
to accomplish the purposes for which EMPLOYEE has consulted such professional
advisors. EMPLOYEE expressly promises and agrees that EMPLOYEE will not disclose
to any future, present or former employees of EMPLOYER the terms of this
Agreement. The Parties acknowledge that EMPLOYER's policy with respect to
references is to solely give dates of service. EMPLOYER shall continue this
policy with respect to reference requests on behalf of EMPLOYEE. EMPLOYER agrees
not to make any statements about EMPLOYEE which are decrying or disparaging.
EMPLOYEE further agrees not to make any statements about EMPLOYER or its
management which are decrying or disparaging.
3. Definition of "Claims". For purposes of this Agreement, "Claims" shall
mean any and all manner of action or actions, cause or causes of action, in law
or in equity, suits, debts, liens, contracts, agreements, promises, liabilities,
claims, demands, losses, settlements, judgments, costs, or expenses of any
nature whatsoever, whether known or unknown, fixed or contingent, which
heretofore have existed or now exist or may in the future exist, all to the
extent arising out of, relating to or based upon EMPLOYEE's employment with
EMPLOYER or the cessation or termination of that employment; provided, however,
that "Claims" shall not include matters relating to the indemnification
provisions of EMPLOYER's certificate of incorporation, bylaws or other similar
corporate documents or any indemnification otherwise provided by law; and
provided further that "Claims" shall not include matters relating to EMPLOYEE's
rights under or arising out of this Agreement.
4. EMPLOYEE Release.
a. Release. EMPLOYEE, for EMPLOYEE and for EMPLOYEE's relatives,
spouse, legal representatives, agents, attorneys, heirs, executors,
administrators, assigns and affiliates, past and present and future, and each of
them, does hereby fully and forever release and discharge EMPLOYER and each of
EMPLOYER's present and former shareholders, parents, subsidiaries, related
entities, predecessors, successors, officers, directors, employees, agents,
attorneys, partners, affiliates and assigns (collectively with EMPLOYER, the
"Primary EMPLOYER Releasees"), and each of them, and the Primary EMPLOYER
Releasees' spouses, relatives, heirs, executors, administrators, legal
representatives, officers, directors, employees, agents, attorneys,
predecessors, successors, assigns, shareholders, partners, parents,
subsidiaries, related entities and affiliates, past and present, and all persons
acting by, through, under, or in concert with them, or any of them
(collectively, together with the Primary EMPLOYER Releasees, the "EMPLOYER
Releasees"), with respect to any and all Claims which EMPLOYEE now has or may
hereafter have against the EMPLOYER Releasees, or any of them, by reason of any
matter, cause or thing whatsoever from the beginning of time to the date hereof.
[*] Confidential treatment requested
(It is expressly agreed that EMPLOYEE's rights under the agreements, instruments
and laws expressly identified in Section 3 and Section 11 as not being part of
"Claims" or superseded are not released hereunder.) The Parties specifically
understand, acknowledge and agree that this is a full and final release,
applying to all of EMPLOYEE's Claims, whether known or unknown, against the
EMPLOYER Releasees, or any of them. EMPLOYEE understands and agrees that
EMPLOYEE is waiving any rights EMPLOYEE may have had, now has, or in the future
may have to pursue any and all remedies available to EMPLOYEE under any
employment-related causes of action, including without limitation, claims of
wrongful discharge, breach of contract, claims under Title VII of the 1964 Civil
Rights Act, as amended, the California Fair Employment and Housing Act, the
Equal Pay Act of 1963, California Labor Code Section 1197.5, the Age
Discrimination in Employment Act of 1967, the Civil Rights Act of 1866, the
Americans with Disabilities Act, and any other laws and regulations relating to
employment or employment discrimination. EMPLOYEE hereby expressly and
voluntarily waives all rights or benefits that EMPLOYEE might otherwise have
under the provisions of Section 1542 of the Civil Code of the State of
California, which provides as follows, and under all federal, state and/or
common-law statutes or principles of similar effect:
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.
This Agreement is in full accord, satisfaction and discharge of all of
EMPLOYEE's Claims against the EMPLOYER Releasees, or any of them. This Agreement
has been executed with the express intention of effectuating the full and final
extinguishment of all such Claims.
b. No Suit or Cooperation. EMPLOYEE represents, warrants, covenants
and agrees that EMPLOYEE will not, at any time hereafter, initiate, assign,
maintain or prosecute, or knowingly aid in the initiation, assignment,
maintenance or prosecution of any action, claim, demand or cause of action
against the EMPLOYER Releasees, or any of them (or against any other person or
entity, if such action, claim, demand or cause of action materially adversely
affects or might materially adversely affect EMPLOYER), arising from, or
relating to, or in any way connected with any matter which occurred before today
(including without limitation all Claims and the pending or any future class
action litigation). EMPLOYEE further represents and warrants that neither
EMPLOYEE nor EMPLOYEE's relatives, spouse, legal representatives, agents,
attorneys, assigns or affiliates, past or present, has instituted any action or
claim against the EMPLOYER Releasees, or any of them, with respect to any
matter. EMPLOYEE agrees that if EMPLOYEE violates this Section 4.b in any manner
or in any manner asserts against the EMPLOYER Releasees, or any of them, any of
the Claims released hereunder, then EMPLOYEE will pay to the EMPLOYER Releasees,
and each of them, in addition to any other damages caused to the EMPLOYER
Releasees thereby, all attorneys' fees incurred by the EMPLOYER Releasees in
defending or otherwise responding to said action, etc. or Claim.
[*] Confidential treatment requested
c. No Prior Assignments. EMPLOYEE represents and warrants that there
has been no assignment or other transfer of any interest in any Claim which
EMPLOYEE may have against the EMPLOYER Releasees, or any of them, and EMPLOYEE
agrees to defend, indemnify and hold the EMPLOYER Releasees, and each of them,
harmless from any liability, claims, demands, damages, costs, expenses and
attorneys' fees incurred by the EMPLOYER Releasees, or any of them, as a result
of any person asserting any such assignment or transfer. It is the intention of
the Parties that this indemnity does not require payment as a condition
precedent to recovery by the EMPLOYER Releasees under the indemnity, and that
this indemnity shall be payable as incurred and on demand.
d. Denial of Liability and Obligation. This Agreement is not intended
to and shall not constitute any admission or concession of any kind by EMPLOYER
or any other person as to the existence of any liability or obligation to
EMPLOYEE under any Claim. The EMPLOYER Releasees specifically deny the existence
of any such liability or obligation to EMPLOYEE.
5. Full Defense. It is specifically understood and agreed that this
Agreement may be pleaded as a full and complete defense to and may be used as
the basis for an injunction against any action, arbitration, suit, or other
proceeding which may be instituted, prosecuted or attempted in breach of this
Agreement.
6. Assumption of Risk as to Facts. The Parties both understand that if the
facts with respect to which they are executing this Agreement are later found to
be other than or different from the facts both or either of them now believe to
be true, they expressly accept and assume the risk of such possible difference
in fact and agree that this Agreement shall remain effective despite any
difference of fact.
7. Resignation. EMPLOYEE hereby confirms his resignation, effective January
10, 2002, as an employee and from all positions as an officer of EMPLOYER and
any and all of its direct and indirect subsidiaries, and his resignation,
January 10, 2002, as a member of the Board of Director's of EMPLOYER.
8. Consultation. EMPLOYEE agrees to provide consultation and advice to
EMPLOYER at mutually acceptable times and locations in connection with the
transition period until EMPLOYEE's successor is well established, or in
connection with any acquisition of EMPLOYER; but in no event shall EMPLOYEE be
required to provide consultation and advice to such an extent that it interferes
with any new employment that he has, nor in any event after [*].
9. No Outside Representations. No representation, warranty, condition,
promise, understanding or agreement of any kind with respect to the subject
matter hereof has been made by any Party, nor shall any such be relied upon by
any Party, except those contained herein. There were no inducements to enter
into this Agreement, except for what is expressly set forth in this Agreement.
[*] Confidential treatment requested
10. Benefit. This Agreement shall inure to the benefit of and be binding
upon the Parties and the Parties' respective spouse, agents, relatives,
employees, officers, directors, shareholders, parents, subsidiaries, related
entities, affiliates, attorneys, partners, legal representatives, heirs,
executors, administrators, successors and assigns.
11. Entire Agreement. This Agreement represents and contains the entire
agreement and understanding between the Parties with respect to the subject
matter of this Agreement (which is deemed to include, without limitation,
EMPLOYEE's employment with EMPLOYER, all rights and benefits in connection
therewith, all written or oral contracts relating thereto, and all matters
relating to the cessation or termination of such employment), and supersedes any
and all prior or contemporaneous oral and written negotiations, agreements and
understandings. (The Parties hereby confirm that this Agreement does not in any
way supersede the written Proprietary Information and Inventions Agreement dated
September 8, 1999 between EMPLOYER and EMPLOYEE, nor does it supersede the
indemnification provisions of EMPLOYER's certificate of incorporation, bylaws or
other similar corporate documents or any indemnification otherwise provided by
law, nor does it supersede any written agreement by EMPLOYEE to comply with
EMPLOYER policies.) This Agreement may not be amended or modified or waived
except by an agreement signed by both Parties.
12. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall be deemed one
and the same instrument.
13. Severability. All provisions contained herein are severable and in the
event that any of them shall be held to be to any extent invalid or otherwise
unenforceable by any court of competent jurisdiction, such provision shall be
construed as if it were written so as to effectuate to the greatest possible
extent the Parties' expressed intent; and in every case the remainder of this
Agreement shall not be affected thereby and shall remain valid and enforceable,
as if such affected provision were not contained herein.
14. California Law. This Agreement is made pursuant to, and shall be
governed by, the internal laws of the State of California.
15. Tax Consequences. EMPLOYER shall have no obligation to EMPLOYEE with
respect to any tax obligations incurred as the result of or attributable to this
Agreement or arising from any payments made or to be made hereunder. Any
payments made pursuant to this Agreement shall be subject to such withholding
and reports as may be required by any then-applicable laws or regulations of any
state or federal taxing authority.
[*] Confidential treatment requested
16. Waiver. No waiver of any provision of this Agreement shall be binding
unless and until set forth expressly in writing and signed by the waiving Party.
The waiver by any Party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any preceding or succeeding breach of the
same or any other term or provision, or a waiver of any contemporaneous breach
of any other term or provision, or a continuing waiver of the same or any other
term or provision. No failure or delay by a Party in exercising any right,
power, or privilege hereunder or other conduct by a Party shall operate as a
waiver thereof, in the particular case or in any past or future case, and no
single or partial exercise thereof shall preclude the full exercise or further
exercise of any right, power, or privilege. No action taken pursuant to this
Agreement shall be deemed to constitute a waiver by the Party taking such action
of compliance with any representations, warranties, covenants or agreements
contained herein.
17. Drafting Party. The provisions of this Agreement have been prepared,
examined, negotiated and revised by each Party hereto. No implication shall be
drawn and no provision shall be construed against any Party by virtue of the
purported identity of the drafter of this Agreement, or any portion thereof.
18. Headings. Section headings are inserted herein for convenience of
reference only and in no way are to be construed to define, limit or affect the
construction or interpretation of the terms of this Agreement.
19. No Coercion. EMPLOYEE acknowledges that EMPLOYEE received this
Agreement on or before January 16, 2002, and was given at least twenty-one (21)
days before he signed this Agreement in which to consider this Agreement
(including EMPLOYEE's waivers made in this Agreement). EMPLOYEE acknowledges
that EMPLOYEE has read and understands this Agreement, and that EMPLOYEE has
been encouraged to and has had the opportunity to consult an attorney and obtain
independent legal advice regarding this Agreement. EMPLOYEE has not been coerced
into signing this Agreement and is entering into this Agreement voluntarily and
of EMPLOYEE's own free will. EMPLOYEE further acknowledges that the waivers
EMPLOYEE has made in this Agreement are knowing, conscious and voluntary and are
made with full appreciation that EMPLOYEE is forever foreclosed from pursuing
any of the rights so waived.
20. Temporary Right to Revoke. EMPLOYEE understands that for a period of
seven (7) days after signing this Agreement EMPLOYEE has the right to revoke it
and that this Agreement shall not become effective or enforceable until after
those seven (7) days.
IN WITNESS WHEREOF, the Parties have executed and delivered this General
Release and Settlement Agreement effective as of January , 2002.
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[*] Confidential treatment requested
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EMPLOYEE
P-COM, INC.
By:
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Chairman and Chief Executive Officer
[*] Confidential treatment requested
PROMISSORY NOTE
Date: April , 2002
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$100,000
Promise to Pay. FOR VALUE RECEIVED, Xxxxx Xxxxxxx, an individual
residing in the State of California (the "Borrower"), promises to pay to
the order of P-COM, INC. (the "Holder") the principal sum of One Hundred
Thousand Dollars and 00/100 ($100,000), without interest thereon, payable
in twelve (12) equal installments of $8,333.33, commencing on July 10, 2003
and on the tenth day of each month thereafter (or next business day if the
tenth day is not a business day) until paid in full. Borrower agrees that
time is of the essence and if this Note is not paid when due, whether at
stated maturity or by acceleration, interest shall then accrue on the
unpaid principal of this Note at the rate of twelve percent (12%) per
annum, compounded monthly during such period of default for so long as such
event of default continues. The principal and interest represented by this
Note shall be payable in immediately available fund in lawful money of the
United States which shall be legal tender for public and private debts at
the time of payment. All payments hereunder shall be payable to the order
of Holder at 0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or
to such person as shall be designated in writing from time to time by
Holder. Payments received by Holder shall be applied first to the
collection expenses incurred by Holder, then to interest, if any, and the
balance, to principal.
Prepayment. Borrower may prepay without permission or penalty all or
any portion of the principal balance of this Note.
Costs. Borrower promises to pay all costs incurred by Holder in the
collection of this Note, including but not limited to reasonable attorneys'
fees and expenses.
Default Borrower shall be in default (an "Event of Default") under
this Note on the occurrence of any of the following: (a) non-payment of any
principal amount when due under this Note; (b) Borrower (i) admitting
insolvency or an inability to pay her debts as they mature, (ii) making a
general assignment for the benefit of creditors, (iii) commencing a case
under or otherwise seeking to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation law, statute or proceeding, (iv) by any act indicating his
consent to, approval of or acquiescence in any such proceeding or the
appointment of any receiver of or trustee for her or a substantial part of
her property or suffering any such receivership, trusteeship or proceeding
to continue without dismissal for a period of thirty (30) days, or (v)
becoming a debtor in any case under any chapter of the applicable
Bankruptcy Code; (c) the occurrence of a material adverse change in the
financial condition of Borrower which is not cured within ten (10) days of
the date of notice from Holder to Borrower with respect to such occurrence;
(d) the death of the undersigned. Upon the occurrence of any Event of
Default, the Holder, at its sole option, may accelerate the due date of and
declare the unpaid balance of this Note to be immediately due and payable
without notice, presentation, demand of payment or protest, all of which
are hereby expressly waived by the Borrower.
Remedies. BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN CONNECTION WITH ANY SUIT BROUGHT UNDER THIS NOTE BY HOLDER.
Borrower hereby (i) agrees to waive any and all lack of diligence or delays
in the collection or enforcement hereof and (ii) expressly consents to any
extension of time for payment of this Note and
any other indulgence or forbearance by Holder. Any such extension, release,
substitution, indulgence, or forbearance may be made without notice to any
party and without in any way affecting the personal liability of any party
liable hereon. Borrower waives notice, demand for payment and presentment.
Notice. Any notice or legal process or summons to Borrower where
provided for in this Note shall be given by mailing such notice by
certified mail, return receipt requested, to Borrower at 0000 Xxxxxxx Xxx,
Xxx Xxxx, Xxxxxxxxxx 00000 or to such other address Borrower may designate
by written notice to Holder hereof. Any notice to the Holder hereof shall
be given by mailing such notice by certified mail, return receipt
requested, to the Holder at 0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, or at such other address as may have been designated by
written notice to Borrower.
Miscellaneous. This Note shall be binding upon Borrower and his heirs
and successors and shall inure to the benefit of Holder and its successors
and assigns. Any modifications to this Note shall be in writing and signed
by the Borrower and the Holder. This Note is executed and delivered in and
shall be governed by and construed in accordance with the laws of the State
of California. Borrower hereby consents to the in personam jurisdiction of
any court sitting in Santa Xxxxx County. In the event that any particular
provision contained herein is determined to be invalid, whether in whole or
in part, the remaining provisions hereof otherwise not invalid and any
partially valid provision to the extent valid or enforceable shall continue
in full force and effect. Any reference herein to the singular shall
include the plural, any reference to the masculine shall include the
feminine gender, and any reference to "it" shall include "his," or vice
versa, as the case may be.
IN WITNESS WHEREOF, the undersigned, with full power and authority to
do so, has caused these presents to be executed and delivered on the day
and year first above written.
ATTEST: BORROWER:
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Name: XXXXX XXXXXXX
Title:
