Settlement Agreement and Release - 8x8 Inc. and Keith Barraclough
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made by and between
8 X 8, INC., a Delaware corporation (the "Company"), and KEITH BARRACLOUGH
("Employee").
WHEREAS, Employee was employed by the Company as President and Chief
Operating Officer;
WHEREAS, the Company and Employee (collectively referred to as "the
Parties") have entered into an Employment, Confidential Information and
Invention Assignment Agreement (the "Confidentiality Agreement");
WHEREAS, Employee has been granted stock options pursuant to certain Stock
Option Agreements between the Company and Employee dated January 27, 1995
(15,000 shares), December 11, 1995 (20,000 shares), June 24, 1996 (20,000
shares), September 21, 1998 (170,000 shares), September 21, 1998 (30,000
shares), September 21, 1998 (50,000 shares), September 21, 1998 (25,000 shares),
October 19, 1998 (25,000 shares), April 9, 1999 (15,000 shares), July 20, 1999
(20,000 shares), and May 16, 2000 (200,000 shares) (together the "Stock Option
Agreements"); and
WHEREAS, the Company, on the one hand, and Employee, on the other hand,
have mutually agreed to terminate the employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company, on the one hand, and Employee on the other hand hereby agree as
follows:
1. Resignation. Upon acceptance of this Agreement by the Parties,
Employee resigns from Employee's employment at the Company effective as of June
19, 2000 (the "Resignation Date"). Further, Employee shall also be deemed to
have resigned from the Company's Board of Directors effective June 19, 2000.
2. Consideration.
(a) Severance. Immediately following the date on which the parties
execute this Agreement, (the "Effective Date"), the Company
agrees to pay Employee, as severance, a lump sum of Ninety Five
Thousand Dollars ($95,000), representing his current rate of pay
for six months of work. Six months after the Effective Date, the
Company agrees to pay Employee, as additional severance, an
additional lump sum of Ninety-Five Thousand Dollars ($95,000),
minus withholding, as long as Employee has not accepted
employment with a company listed on the attached Exhibit A,
whether as an employee, independent contractor, consultant, or
otherwise ("Payment Period"). Said second $95,000 payment is
expressly conditioned on the Employee's agreement not to accept
employment with any company listed on Exhibit A for a period
expiring one year following the date of Employee's resignation.
Employee agrees that if he accepts employment, as described
above, with an Exhibit A company after the receipt of his second
$95,000
<PAGE> 2
payment, but before the completion of the one year period following the
Resignation Date, he shall be obligated to repay the Company on a pro
rata basis for each month he is so employed, provided that only the
second $95,000 payment shall be subject to repayment (at a rate of 16.6%
per month worked less withholding). Employee agrees to notify Company
immediately upon his earning wages from a subsequent employer and his
failure to do so will constitute a breach of this Agreement. Employee
understands that the Company shall issue a Form W-2 to Employee for said
payments.
(b) Vesting of Stock. On the Effective Date, the Parties agree that for
purposes of determining the number of shares of the Company's common
stock which Employee is entitled to purchase from the Company pursuant to
the exercise of outstanding options, the Employee shall, as of the
Resignation Date, be vested as to that number of option shares as to
which Employee would have been vested under the Stock Option Agreements
had Employee remained employed with the Company through and until January
31, 2001 (the "Vested Option Shares"). Said vesting shall include vesting
under the May 16, 2000 Stock Option Agreement, notwithstanding any
vesting requirements or cliff provisions to the contrary. The Parties
agree that the total number of shares that shall be vested as of the
Effective Date, pursuant to the terms set forth above, is Three Hundred
Forty-Five Thousand, Eight Hundred Ninety Two (345,892) shares (see
attached Exhibit B). To the extent option shares are not vested
(including any accelerated vesting pursuant to the preceding sentence) on
the Resignation Date, they shall be immediately forfeited back to the
Company's Stock Option Plan upon the Resignation Date. The Vested Option
Shares shall accelerate and become immediately exercisable. The exercise
of any Vested Option Shares shall continue to be subject to the terms and
conditions of the Company's Stock Option Plan and the Stock Option
Agreements. Except as otherwise provided herein, the terms of the Stock
Option Agreements remain in full force and effect. The Company agrees
that the Company's "blackout period" shall not apply to Employee, and
Employee acknowledges that he must comply with all applicable securities
laws and regulations. Further, to the extent permitted by applicable law,
Employee's ISOs shall vest prior to his NSOs.
(c) Loan. The Company agrees to extend to Employee a loan not to exceed the
amount of Eight Hundred Seventy-Three Thousand, Four Hundred Eighty-Seven
Dollars ($873,487.00). The purpose of said loan is to enable Employee to
exercise his vested employee stock options. The terms of the loan are
reflected in Exhibit C attached.
(d) COBRA/Benefits. Employee and each eligible dependent who constitutes a
qualified beneficiary, as defined in Section 4980B(g)(1) of the Internal
Revenue Code of 1986, as amended, will be eligible to continue applicable
benefits coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA"), within the time period prescribed
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pursuant to COBRA, Company agrees to reimburse Employee for any
COBRA premiums for such benefits through and including June 20,
2001. The Company further agrees to reimburse Employee for
premiums for life insurance, through and including June 20, 2001,
to the extent Employee converts his group policy to an individual
policy.
(e) Voicemail and E-mail. The Company agrees, for a period of (3)
months following the Effective Date, to provide an autoresponse
on Employee's e-mail address advising the sender of any message
that Employee is no longer employed with the Company and
providing any new e-mail address for the Employee. The
autoresponse shall not state any reason for the termination of
the employment relationship between the parties. In turn,
Employee agrees to notify the Company about any calls or messages
he has received relating to Company business, if any.
(f) Health Club Membership. The Company agrees to pay its portion of
Employee's Decathalon Club membership dues from the Effective
Date through June 20, 2001.
(g) Expense Reimbursement. The Company agrees to reimburse Employee
for all reasonable unreimbursed business expenses within two (2)
weeks after he submits documentation of the expenses. Employee
agrees to provide any such business expense documentation not
later than thirty (30) days from the Effective Date.
(h) Sabbatical. The Company agrees to pay Employee his accrued
sabbatical.
3. Confidential Information. Employee understands that the
Confidentiality Agreement remains in full force and effect, and agrees to
continue to comply with its terms and conditions. Employee shall return to the
Company all Company property and confidential and proprietary information in
Employee's possession not later than the Effective Date of this Agreement.
4. Payment of Salary. Employee acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions,
stock options and any and all other benefits due to Employee, except as
otherwise provided for in this Agreement.
5. No Reinstatement or Reemployment. Employee agrees that, as further
consideration and inducement for the consideration Employee is receiving herein,
Employee will not, at any time in the future, apply for, or in any other matter
seek, reinstatement or reemployment by the Company, and that the Company may
refuse to employ or reemploy Employee, and that doing so shall not give rise to
any claim or cause of action of any nature whatsoever, nor may any suit be
brought by Employee against Company or its agents arising out of any such
refusal to reemploy.
6. Release of Claims. The Parties agree that the foregoing consideration
represents settlement in full of all outstanding obligations owed to each other.
The Parties, on their own
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behalf, and on behalf of their respective heirs, family members, executors,
officers, directors, employees, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor corporations and
assigns, hereby fully and forever release each other and their respective
heirs, family members, executors, officers, directors, employees, investors,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations and assigns, from, and agree not to sue each other
concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that either party may possess arising from any omissions, acts or
facts that have occurred up, until and including the Effective Date of this
Agreement including, without limitation,
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's right
to purchase, or actual purchase of shares of stock of the Company, including,
without limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims for wrongful termination of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and Labor Code section
201, et seq. and section 970, et seq.;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Parties 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. Similarly, this release does not apply to any claims
Employee may have for indemnification by the Company under any applicable
agreement, insurance policy (including that providing coverage for the actions
of Company directors and officers), Company by-laws, or under any applicable
statute. Further, the Company agrees to
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indemnify Employee in the same manner as its other officers and directors.
Finally, nothing stated herein shall adversely affect any rights Employee may
have under the Company's 401(k) plan.
7. Civil Code Section 1542. The Parties represent that they are not
aware of any claims against each other except for those claims that are
released by this Agreement. Moreover, the Parties agree and represent that it
is within their contemplation that they may have claims against each other of
which, at the time of the execution of this Agreement, they have no knowledge
or suspicion, but that this Agreement extends to claims in any way based upon,
connected with or related to the matters described in paragraph 6, whether or
not known, claimed or suspected by the Parties. The Parties 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 Parties, being aware of said code section, and any other similar
state or federal statute, agree to expressly waive any rights they may have
thereunder, as well as under any other statute or common law principles of
similar effect.
8. Confidentiality. The Parties agree to use their best efforts to
maintain in confidence the existence of this Agreement, the contents and terms
of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"). The Parties agree to
take every reasonable precaution to prevent disclosure of any Settlement
Information to third parties, and agrees that there will be no publicity,
directly or indirectly, concerning any Settlement Information. The Parties
further agree to take every precaution to disclose Settlement Information only
to those attorneys, accountants, governmental entities (including the
Securities Exchange Commission) and family members who have a reasonable need
to know of such Settlement Information.
9. No Cooperation. Employee agrees that Employee will not counsel or
assist any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, stockholder or attorney of the Company, unless under a subpoena
or other court order to do so.
10. Non-Disparagement. Employee agrees to refrain from any defamation,
libel or slander of the Company and its officers, directors, employees,
investors, stockholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, or tortious interference
with the contracts and relationships of the Company and its officers,
directors, employees, investors, stockholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns.
The Company agrees that it will advise its executive management team to refrain
from any defamation, libel or slander of the Employee or from tortiously
interfering with the contracts and business relationships of the Employee.
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11. No Admission of Liability. The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of disputed claims, and
is made to buy peace and for no other reason. 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 acknowledgement or admission by
either party of any fault or liability whatsoever to the other party or to any
third party.
12. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
13. Arbitration. The Parties agree that any and all disputes arising out
of the terms of this Agreement, their interpretation, and any of the matters
herein released, shall be subject to binding arbitration in Santa Clara County
before the American Arbitration Association under its National Rules for the
Resolution of Employment Disputes, or by a judge to be mutually agreed upon.
The Parties agree that the prevailing party in any arbitration shall be
entitled to injunctive relief in any court of competent jurisdiction to enforce
the arbitration award. The parties shall each pay one-half of the costs and
expenses of such arbitration, and each Party shall separately pay its counsel
fees and expenses. The Parties may apply to any court of competent jurisdiction
for a temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without abridgment of the powers of the arbitrator.
14. 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 that may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that Employee has the capacity to act on
Employee's own behalf and on behalf of all whom might claim through Employee to
bind them to the terms 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.
15. No Representations. The Parties represent that they have had the
opportunity to consult with an attorney, and have carefully read and understand
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement. The Parties understand
that after signing this Agreement, they cannot proceed against any person
mentioned in it with respect to or on account of the matters referred to in it.
The Parties further covenant not to sue each other, or to participate or aid in
any suit or proceeding (or to execute, seek to impose, collect or recover upon,
or otherwise enforce or accept any judgment, decision, award, warrant or
attachment) upon any claim released by the Parties under paragraphs 6 and 7.
16. 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.
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17. Entire Agreement. This Agreement, taken together with the Stock
Option Agreements and the Confidentiality Agreement, represents the entire
agreement and understanding between the Company, on the one hand, and Employee
on the other, the complete, final and exclusive embodiment of their agreements
concerning Employee's separation from, and compensation by, the Company and
supersedes and replaces any and all prior and contemporaneous agreements,
representations and understandings regarding said subjects. This Agreement is
executed without reliance on any promise, warranty or representations by any
party or any representative of any party other than those expressly contained
in this Agreement. Notwithstanding the provisions of California Evidence Code
Section 1152, this Agreement is admissible for purposes of enforcement.
18. No Oral Modification. This Agreement may not be altered, amended,
modified or otherwise changed in any respect or particular except by a writing
signed by Employee and the Chief Executive Officer of the Company. Any such
writing must be ratified by the Board of Directors of the Company.
19. Governing Law. This Agreement shall be governed by the laws of the
State of California.
20. Effective Date. This Agreement is effective on the date that it has
been signed by both Parties (the "Effective Date").
21. 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. The Agreement may be transmitted by facsimile or otherwise.
22. 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 the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of the Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They know and 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 WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
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8 x 8, INC.
Dated: July 10, 2000 By: /s/ DAVID STOLL
-----------------------------
David Stoll
Chief Financial Officer
KEITH BARRACLOUGH, an individual
Dated: July 10, 2000 By: /s/ KEITH BARRACLOUGH
----------------------------
Keith Barraclough
-8-
<PAGE> 9
EXHIBIT A
Analog Devices
Audiocodes
Broadcom
Broadsoft
Clarent
IPVerse
Komodo
Lucent Microelectronics
Mediatrix
Mitel
PingTel
Radvision
Sylantro
Syndeo
TI/Telogy
Trillium
Tundo
Vocaldata
VocalTec
<PAGE> 10
KEITH BARRACLOUGH
OPTIONS EXERCISABLE AS OF JANUARY 31, 2001
<TABLE>
<CAPTION>
GRANT OPTIONS OPTIONS GRANT EXERCISE EXTENDED
DATE OUTSTANDING EXERCISABLE TYPE PRICE EXERCISE PRICE
----- ----------- ----------- ----- -------- --------------
<S> <C> <C> <C> <C> <C>
1/27/1995 6,000 6,000 Incentive $ 0.500 $ 3,000.00
12/11/1995 10,000 10,000 Incentive $ 0.500 5,000.00
6/24/1996 20,000 20,000 Incentive $ 0.500 10,000.00
9/21/1998 122,509 122,509 Non-qualified $ 3.000 367,527.00
9/21/1998 17,491 17,491 Incentive $ 3.000 52,473.00
9/21/1998 26,249 26,249 Non-qualified $ 3.000 78,747.00
9/21/1998 3,751 625 Incentive $ 3.000 1,875.00
9/21/1998 25,000 25,000 Non-qualified $ 3.000 75,000.00
9/21/1998 31,549 31,549 Incentive $ 3.130 98,748.37
9/21/1998 18,451 18,451 Non-qualified $ 3.130 57,751.63
10/19/1998 17,709 6,771 Incentive $ 2.440 16,521.24
10/19/1998 7,291 7,291 Non-qualified $ 2.440 17,790.04
4/9/1999 7,500 7,500 Non-qualified $ 4.500 33,750.00
4/9/1999 7,500 5,624 Incentive $ 4.500 25,308.00
7/20/1999 15,000 2,499 Incentive $ 4.000 9,996.00
7/20/1999 5,000 5,000 Non-qualified $ 4.000 20,000.00
5/16/2000 200,000 33,333 Non-qualified $12.563 418,762.48
------------------------ -------------
541,000 345,892 $1,292,249.76
======================== =============
</TABLE>
(1) Assumes vesting of 1/48th/month beginning as of the date of grant.