EXHIBIT 10.8
June 30, 2002
Xx. Xxxx Xxxxxx
RE: Separation Agreement
Dear Syed:
You have agreed to terminate your employment contract with NetSol Technologies,
Inc. ("NetSol" or the "Company") through June 15, 2002 (the "Termination Date").
This letter will confirm our agreement concerning the termination of your
employment with NetSol on that date and will define the terms of your severance
under this Separation Agreement (the "Separation Agreement") and your Executive
Employment Agreement dated April 22, 2002 (the "Employment Agreement") at the
Termination Date. This Separation Agreement supersedes all previous oral and
written agreements regarding your employment with NetSol, it being understood
that the terms and conditions of this Separation Agreement, to the degree that
they may conflict with the terms and conditions of your Employment Agreement,
shall in all cases supersede the terms of the Employment Agreement, which
agreement shall unless otherwise stated herein, remain in full force and effect.
REPORTING RELATIONSHIP AND DUTIES:
You will retain the title of Chief Financial Officer ("CFO") and Chief Operating
Officer (COO) through the Termination Date. However, your current duties as CFO
and COO will end on June 1, 2002. For the period from January 31, 2000 through
the Termination Date, your duties and responsibilities will be significantly
altered, including the understanding that you will no longer have operational
responsibility for any portion of the Company. During your period of continued
employment and up until the Termination Date, you will continue to receive your
current salary, which amounts will be Grossed Up (as defined below) and your
current officer benefit package. During your employment with the Company through
the Termination Date, you will report to the President and Chief Executive
Officer (CEO). However, this reporting relationship may be changed at any time
before the Termination Date by the Company.
GOALS AND OBJECTIVES: During your period of continued employment with
the Company you have agreed to focus on: (i) assisting in defining, implementing
and achieving the on-going corporate restructuring and corporate-wide cost
reductions, (ii) assisting in the disposition of certain Company assets, (iii)
assisting in the negotiation of and entering into definitive agreements
regarding strategic business alliances, and (iv) such other tasks as may be
reasonably requested of you, from time-to-time, by the Board of Directors, the
CEO, or President, as the case may be. On the Termination Date you will also
execute such documents or letters as may be necessary to resign from any
positions you may then hold as an officer and/or director of any subsidiaries or
affiliates of the Company.
SEPARATION PAYMENT: The Company will pay, within 30 days of the
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Termination Date, a separation payment to you equal to: (i) Salaries owed to you
will be used as funds to exercise options owed to you under your employment
contract dated April 22, 2002, six months of salary, and (ii) COBRA payments.
STOCK OPTIONS AND RESTRICTED STOCK:
Due to your "Voluntary Termination" on the Termination Date, in accordance with
the terms of Section 3 entitled "Compensation" of your Employment Agreement all
of your outstanding and unvested stock options will immediately vest (according
to the terms of your Stock Option Agreements and the Company's 2001 Stock Option
Plan). Pursuant to the terms of your Employment Agreement, you will have 18
months from the Termination Date to exercise all of your vested options, which
"exercise window" will therefore remain open until November 30, 2003.
COBRA PAYMENTS: For three months from the Termination Date, you will be
entitled to receive COBRA benefits for the equivalent medical and dental
coverage for you and your family as may be in effect at the Termination Date.
Subsequent to the three months after the Termination Date, you will be able to
continue to have COBRA benefits coverage should you so choose, by directly
making those payments.
NO ADVERSE COMMENT: You agree that during your employment with the
Company through the Termination Date and for at least two years following the
Termination Date, you will not, except as specifically required by law or court
process or consented to in writing by the Company, (a) communicate to any person
or entity any adverse information, written or oral, concerning the Company, its
officers, directors, employees, attorneys, agents or advisers (including any
communication concerning information that related to the business, operations,
prospects or affairs of the Company or any of its subsidiaries or affiliates)
under the circumstances in which there is a reasonable possibility that such
information might be publicly reported or disclosed or otherwise made available
to third parties (regardless of whether the communication of such information is
intended to have or cause that result is within your control), or (b) provide to
any person (other than your attorney, accountant and/or spouse) or entity any
information that concerns or related to the negotiations or circumstances
leading to the execution of this Separation Agreement. Likewise, the Company
shall refrain, for a similar period of time, from communicating any adverse
comments relating to you and/or your tenure with the Company or the
circumstances leading to the execution of this Separation Agreement.
NON-SOLICITATION PROVISIONS: You confirm that during the two-year period
commencing with the Termination Date, you will not, directly, or indirectly,
solicit, or encourage any then-current Company employees to apply for employment
with any person or entity (a) with which you are (or intend to be) employed, (b)
by whom you or an entity in which you are employed or have a financial interest
is engaged as a consultant, recruited, independent contractor or otherwise, or
(c) in which you further covenant and agree that you will not provide to any
other person or entity the names of any person who is then employed by the
Company.
NON-COMPETE PROVISIONS:
Per the terms of Section 2 of your Employment Agreement, you confirm that for a
period of eighteen months from the Termination Date that you will not, either
directly or indirectly, engage in any activity in competition with any product
or service of the Company, or harmful or
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contrary to the best interest of the Company, including accepting employment
with or serving as a consultant to any entity that is in competition with the
Company, provided however that if at any time during this eighteen month
prohibitionary period the Company shall have a "Change in Control" event as
defined in your Employment Agreement, then this employment prohibition shall be
retroactively reset so as to run chronologically for a period of one year from
the Termination Date. Those companies deemed to be competitors to NetSol are
Infosys, Winpro, and ?????. Provided however, you may at any time request
permission from the Company, in writing, to accept employment with any of these
designated competitor companies. If the product areas or business units with
which you seek to affiliate do not compete with NetSol, and NetSol at its
reasonable discretion determines that such employment would not be adverse to
the interest of NetSol, then the Company shall approve such employment, such
approval not to be unreasonably withheld or delayed and such approval only to be
effective if communicated in writing.
SETTLEMENT AND RELEASE:
The payments recited in this Separation Agreement are contingent upon your
execution and delivery to the Company a Settlement and Release Agreement
substantially in the form attached as Exhibit A to your Employment Agreement.
NONDISCLOSURE: Unless otherwise required to do so by law, subpoena or
court order, you will not in any way communicate or discuss the terms of
this Separation Agreement or the circumstances of its execution with any
person, other than your attorneys, accountants, immediate family
members, prospective employers, or authorized Company personnel (said
personnel to be explicitly designated by the Company's President and
CEO). You understand that this nondisclosure provision applies
particularly to current and former employees of the Company and the
Company's customers, clients and vendors. As to matters related to an
anticipated announcement via news releases, internal electronic postings
and other communications regarding your new reporting relationships,
your new duties and your pending departure from the Company and any
subsequent news releases or other announcements that may make reference
to the fact of your termination from the Company, the Company will work
with you to insure that suitable communications are drafted such that
announcements do not reflect adversely on your professional reputation
or tenure with the Company.
You acknowledge that you have been represented by independent legal
counsel of your own choice throughout all of the negotiations which preceded the
execution of this Separation Agreement and you execute this Agreement with the
consent and on the advice of such independent legal counsel.
This Separation Agreement shall be deemed for purposes of the Older
Workers Benefits Protection Act to have been delivered to you for your
consideration on the date set forth above. You have 21 days from that date to
decide whether or not to accept this agreement. If you accept this agreement,
you will then have seven days from the date you sign and deliver an executed
copy of this agreement to the Company to revoke your acceptance by notifying the
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Company in writing of your desire to do so. No amounts otherwise due to you
under this Separation Agreement will be paid to you until the expiration of the
seven day revocation period. When you are ready to do so, please sign both
copies of this letter below, indicating your acceptance, and return one copy for
our files.
Accepted and Agreed: Very truly yours,
NetSol International, Inc.
/s/ XXXX XXXXXX /s/ XXXXX XXXXXX
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Xxxx Xxxxxx Xxxxx Xxxxxx, CEO
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EXHIBIT "A"
SETTLEMENT AND RELEASE AGREEMENT
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") is made and
entered into this 30th day of June, 2002, by and between NetSol Technologies,
Inc., a Nevada corporation and all of its subsidiaries (collectively "NetSol" or
the "Company"), Xxxx Xxxxxx, an individual ("Xxxxxx"). NetSol and Xxxxxx are
jointly referred to herein as, ("The Parties").
I.
FACTUAL RECITALS
1.1 This Agreement is executed with reference to the following
facts:
1.2 On or about July 2000, NetSol hired Xxxxxx as a CFO of the
Company. On April 10, 2002, Company and Xxxxxx signed and
Executive Employment Agreement.
1.3 In June 2002, NetSol and Xxxxxx determined it is in the best
interests of the Company and Xxxxxx to terminate the employment
relationship that was established by Xxxxxx and the Company as
articulated in a "Separation Agreement dated June 10, 2002.
1.4 It is now the desire and intention of the Company and Xxxxxx to
settle, compromise, and resolve all the differences,
disagreements and disputes which exist or may exist between
them, including but not limited to those which are the subject
matter of, refer to, relate to, or may arise from the Agreement,
referenced herein. Pursuant to this desire, and in consideration
for these mutual promises, the Parties agree as follows.
II.
CONSIDERATION
2.1 Xxxxxx is to provide a release to NetSol for any and all claims
arising or relating to Husain's Employment Agreement and
Separation Agreement.
2.2 NetSol is to provide a release to Xxxxxx for any and all claims
arising or relating to Husain's Employment Agreement and
Separation Agreement.
III.
RELEASES
3.1 Except with respect to the obligations created by or arising out of
this Agreement, Xxxxxx for him and his legal successors and assigns, releases
and absolves and forever discharges NetSol and their legal successors and
assigns, and each of them, and the attorneys and
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other representatives of NetSol and its respective legal successors and assigns,
and each of them (all of whom are hereinafter collectively referred to as the
"Releasees"), of and from any and all claims, demands, damages, debts,
liabilities, accounts, obligations, costs, expenses, liens, actions and causes
of action of every kind and nature whatever, whether now known or unknown,
suspected or unsuspected, which Xxxxxx now has, owns or holds, or at any time
previously had, owned or held, or could, shall or may hereafter have, own or
hold against any of the Releasees, based upon, related to or by reason of any
matter, cause, fact, act or omission related to or by reason of any contract
(express, implied in fact or implied by law), tort, lien, liability, matter,
cause, fact, thing, act or omission whatever, occurring or existing at any time
to and including the date on which this Agreement is executed (all of which are
referred to as the "Released Matters").
3.2 Except with respect to the obligations created by or arising out of
this Agreement, NetSol, for it and its legal successors and assigns, releases
and absolves and forever discharges Xxxxxx and its legal successors and assigns,
and each of them, and the attorneys and other representatives of Xxxxxx and its
respective legal successors and assigns, and each of them (all of whom are
hereinafter collectively referred to as the "Releasees"), of and from any and
all claims, demands, damages, debts, liabilities, accounts, obligations, costs,
expenses, liens, actions and causes of action of every kind and nature whatever,
whether now known or unknown, suspected or unsuspected, which NetSol may now
have, own or hold, or at any time previously had, owned or held, or could, shall
or may hereafter have, own or hold against any of the Releasees, based upon,
related to or by reason of any matter, cause, fact, act or omission related to
or by reason of any contract (express, implied in fact or implied by law), tort,
lien, liability, matter, cause, fact, thing, act or omission whatever, occurring
or existing at any time to and including the date on which this Agreement is
executed (all of which are referred to as the "Released Matters").
3.3 It is the intention of the parties in executing this Agreement, and
receiving the items of personal property called for by this Agreement, that this
Agreement shall be effective as a full and final accord in satisfaction and
general mutual release of and from any claims, damages, debts, liabilities,
accounts, obligations, costs, expenses, liens, accounts and causes of action of
every kind and nature whatever, whether now known or unknown, suspected or
unsuspected, specified herein as "Released Matters." In furtherance of this
intention, each of the parties acknowledges that he/she/it is familiar with
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."
Each of the parties waives and relinquishes any right or benefit which it has or
may have under California Civil Code Section 1542, or the law of any other
jurisdiction to the same or similar effect, with respect to the subject matter
of this Agreement. In connection with this waiver and relinquishment, each of
the parties acknowledges that it is aware that it or its attorneys may discover
claims or facts in addition to or different from those which it now knows or
believes to exist with respect to the subject matter of this Agreement or any
party to this Agreement; but that its intention is to fully, finally and forever
settle and release all of the Released Matters, whether
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known or unknown, suspected or unsuspected, which now exist, may exist or
existed, between the Parties, except as specified in this Agreement. In
furtherance of this intention, the releases shall be and remain in effect as
full and complete general mutual releases, notwithstanding the discovery or
existence of any such additional or different claims or facts. Each party
further represents and warrants that the meaning and effect of California Civil
Code Section 1542 has been explained to it by its attorneys and that each party
to this Agreement has had adequate opportunity to fully discuss the effect on
its legal rights of the waiver of this section of the Civil Code.
3.4 The Parties warrant and represent to each other that they are the
sole and lawful owners of all right, title and interest in and to all Released
Matters and that neither has heretofore assigned or transferred or purported to
assign or transfer to any person or entity any released material or any part or
portion of any released material. The Parties shall each indemnify and hold the
other harmless from and against any claim, demand, damage, debt, liability,
account, cost, expense, lien, action or cause of action based on, in connection
with, or arising out of any such assignment or transfer or purported or claimed
transfer or assignment.
IV.
GENERAL PROVISIONS
4.1 It is the understanding of the parties executing this Agreement that
the releases it contains shall apply and extend to only the parties to this
Agreement. Nothing the Agreement contains shall be construed or deemed to
release any person not a party to this Agreement from any claim, cause of
action, demand, or liability. This Agreement is between the Parties only, and is
not intended to be, nor shall it be construed as being, for the benefit of any
third party or parties.
4.2 It is further understood and agreed that this Agreement, the
releases it contains, and the return of personal property affect the settlement
of claims which are denied and contested, and nothing in this Agreement
contains, or the return of any personal property referred to in this Agreement
shall be construed as, an admission by any party of any liability of any kind to
any party to this Agreement or any other person, and such liability is expressly
denied.
4.3 This Agreement constitutes and contains the entire Agreement and
understanding concerning this subject matter between the parties and supersedes
and replaces all prior negotiations, proposed agreements or agreements, written
or oral. Each of the parties acknowledges that no other party or any agent or
attorney of any other party made any promise, representation or warranty
whatsoever, express or implied, or oral, not contained in this Agreement,
concerning its subject matter to induce either party to execute this Agreement,
and each of the parties acknowledges that it has not executed this Agreement in
reliance on any promise, representation or warranty that is not contained in
this Agreement.
4.4 The terms of this Agreement are contractual and not merely recital.
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4.5 The Parties acknowledge that they have been represented by
independent legal counsel of their own choice throughout all of the negotiations
which preceded the execution of this Agreement and that each has executed this
Agreement with the consent and on the advice of such independent legal counsel.
The Parties each further acknowledge that they or their counsel have had
adequate opportunity to make whatever investigation or inquiry they may deem
necessary or desirable in connection with the subject matter of this Agreement
prior to its execution and the delivery and acceptance of the specified
consideration.
4.6 Each person and/or entity executing this Agreement represents and
warrants that they/it have full authority to enter into and execute this
Agreement.
4.7 This Agreement shall in all respects be interpreted, enforced and
governed by and under the laws of the State of California applicable to
agreements, persons and transactions which have legal contracts and
relationships solely within the State of California.
4.8 In the event that any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holdings
shall not invalidate or render unenforceable any other provision of this
Agreement.
4.9 Each party agrees to execute any documents and to cooperate in any
reasonable manner to effectuate the terms of this Agreement.
4.10 As used in this Agreement "persons" includes persons, individuals,
corporations, partnerships, joint ventures, and any other entity. Whenever in
this Agreement the context so requires, "and" shall include "or" and vice versa,
the neuter gender shall be deemed to refer to and to include the masculine and
feminine, and the singular shall be deemed to refer to and to include plural and
vice versa.
4.11 The titles of the various Articles of this Agreement are used for
convenience of reference only and they are not intended to and shall not in any
way enlarge or diminish the obligations of the parties or affect the meaning or
construction of this Agreement.
4.12 Attorneys' Fees to Enforce This Agreement. In the event that any
action is commenced to seek enforcement of this Agreement or a declaration of
rights thereunder, the prevailing party in such action shall be entitled to
recover his, her or its reasonable attorneys' fees and costs incurred in
connection with that action.
4.13 This Agreement may be executed in counterparts and each executed
counterpart shall be effective as the original. A facsimile signature shall be
deemed as original.
(SIGNATURES FOLLOWED ON THE NEXT PAGE)
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement on the day and year first written above.
DATED: June 30, 2002 CAUTION!! READ THIS ENTIRE AGREEMENT
BEFORE SIGNING
NetSol Technologies, Inc.
/s/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx, CEO
DATED: June 30, 2002 CAUTION!! READ THIS ENTIRE AGREEMENT
BEFORE SIGNING
/s/ XXXX XXXXXX
-----------------------------------
Xxxx Xxxxxx
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