Separation and Release Agreement - Compression Labs Inc. and Robert Silver
<DOCUMENT>
<TYPE>EX-10.45
<SEQUENCE>3
<DESCRIPTION>SEPARATION AGREEMENT W/ ROBERT SILVER 11/29/95
<TEXT>
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EXHIBIT 10.45
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION AND RELEASE AGREEMENT ("Agreement") is made and entered
into by and between ROBERT SILVER ("Mr. Silver") and COMPRESSION LABS, INC. (the
"Company"), as of the Effective Date described in paragraph fourteen (14)
herein.
W I T NE S S E T H
WHEREAS, Mr. Silver has tendered his resignation as Vice President of Sales
and Marketing and all other positions he may hold with the Company in
consideration of the promises and covenants contained herein;
WHEREAS, the Company has accepted Mr. Silver's resignation as Vice
President of Sales and Marketing and wishes to provide Mr. Silver with certain
benefits in consideration of his service to the Company and the promises and
covenants of Mr. Silver as contained herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. RESIGNATION. Mr. Silver has tendered, and the Company has accepted,
Mr. Silver's resignation as Vice President of Sales and Marketing and all other
positions he may hold with the Company, effective December 1, 1995 ("Transition
Date").
2. TRANSITION PERIOD. To aid Mr. Silver in his employment transition, the
Company will continue to employ Mr. Silver from the Transition Date through and
including May 15, 1996 (the "Separation Date"). The time period beginning on the
day after the Transition Date and ending on the Separation Date shall be
referred to as the Transition Period.
(A) DUTIES. During the Transition Period, Mr. Silver shall be
responsible for transition activities as assigned by the Company's Chief
Executive Officer ("CEO"), and shall report to the Company's Vice President
of Human Resources. Mr. Silver agrees that throughout the Transition Period
he will continue to be bound by the Company's employment policies,
procedures and practices.
(B) COMPENSATION AND BENEFITS. During the Transition Period: (i) the
Company will continue to pay Mr. Silver his base salary in effect as of the
Transition Date; (ii) Mr. Silver shall be entitled to continue his
participation in the Company's group health insurance plans in which he was
participating as of the Transition Date; and, (iii) within three (3) days
of the Transition Date, the Company will pay Mr. Silver all accrued, but
unused paid time off, subject to standard payroll deductions and
withholdings. Except as expressly provided herein, Mr. Silver acknowledges
that he will not receive (nor is he entitled to) any additional
compensation or benefits (including, but not limited to, life insurance and
disability insurance) during the Transition Period.
(C) NONCOMPETITION. Mr. Silver agrees that throughout the Transition
Period, he will not, without the Company's prior written approval, directly
or indirectly engage or prepare to engage in any activity in competition
with the Company, or accept employment, provide services to, or establish a
business relationship with a business or individual engaged in or preparing
to engage in competition with the Company.
3. ACCRUED SALARY. Within three (3) days after the Separation Date, the
Company will pay Mr. Silver all accrued salary, subject to standard payroll
deductions and withholdings.
4. ADDITIONAL PAYMENTS AND BENEFITS. The Company has no policy or
procedure requiring payment of any severance benefits. However, if on or about
the Separation Date, Mr. Silver signs the release attached
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hereto as Exhibit B (the "Release Agreement"), the Company will provide Mr.
Silver with the following as part of this Agreement:
(A) SEVERANCE PAYMENTS. Within ten (10) days of the Release Effective
Date as defined in Exhibit B, the Company will, as severance, pay Mr.
Silver two (2) weeks of his base salary in effect on the Transition Date,
subject to standard payroll deductions and withholdings.
(B) HEALTH INSURANCE. Any health insurance coverage provided by the
Company in effect on the Separation Date shall continue through May 31,
1996. Thereafter, to the extent permitted by law and by the Company's group
health insurance plans, Mr. Silver will be eligible to continue his health
insurance benefits under the federal COBRA law, at his own expense, for up
to eighteen (18) months and, later, to convert to an individual policy if
he wishes.
(C) NON-RECOVERABLE DRAW. The Company will forgive any amount of Mr.
Silver's draw in excess of commissions, if any, still outstanding on the
Transition Date.
(D) COMMISSIONS. The Company will pay Mr. Silver his commissions
earned through the Transition Date. All such commissions will be paid in
the ordinary course of business, according to standard Company practice.
(E) OTHER BENEFITS. Except as expressly provided herein, Mr. Silver
acknowledges that he will not receive (nor is he entitled to) any
additional compensation, severance or benefits (including, but not limited
to, life insurance and disability insurance).
5. EXPENSE REIMBURSEMENT. Within five (5) business days after the
Effective Date of this Agreement, Mr. Silver will submit his final documented
expense reimbursement statement reflecting all business expenses he incurred
through the Effective Date, if any, for which he seeks reimbursement. The
Company shall reimburse Mr. Silver's expenses pursuant to Company policy and
regular business practice. The Company shall not reimburse Mr. Silver for any
expenses incurred after the Effective Date, except in the event such expenses
are approved in advance by the CEO.
6. STOCK OPTION EXERCISE. Mr. Silver acknowledges that the vesting of all
of his shares under his stock option will cease on the Transition Date. He shall
be entitled to exercise his vested shares, if any, within ninety (90) days of
the Transition Date in accordance with the terms of the applicable stock option
plan and stock option grant(s).
7. NONSOLICITATION. Mr. Silver agrees that for one (1) year after the
Transition Date, he will not, either directly or through others, solicit or
attempt to solicit any employee, consultant, or independent contractor of the
Company to terminate his or her relationship with the Company in order to become
an employee, consultant or independent contractor to or for any other person or
entity.
8. COMPANY PROPERTY. Within three (3) days after the Separation Date, Mr.
Silver agrees to return to the Company all Company documents (and all copies
thereof) and other Company property in his possession, or his control,
including, but not limited to, Company files, notes, drawings, records, business
plans and forecasts, financial information, specifications, computer-recorded
information, tangible property, credit cards, entry cards, identification badges
and keys; and, any materials of any kind which contain or embody any proprietary
or confidential material of the Company (and all reproductions thereof).
9. PROPRIETARY INFORMATION OBLIGATIONS. Mr. Silver acknowledges that he
continues to be bound by the terms of his Proprietary Information and Inventions
Agreement, a copy of which is attached hereto as Exhibit A.
10. ASSISTANCE WITH LITIGATION. Mr. Silver agrees to assist the Company
and its attorneys with their defense and/or prosecution of legal actions
including, but not limited to, any claim or action brought against the Company
in which Mr. Silver may have relevant information. Mr. Silver's assistance may
include testimony at a deposition and/or trial, informal interviews and other
reasonable activities, as may be requested. The Company will pay any and all
attorneys fees incurred in connection with such assistance. The Company
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will also reimburse Mr. Silver for all reasonable out-of-pocket costs incurred
in connection with any such assistance upon his submittal of documentation of
such costs.
11. NONDISPARAGEMENT. Mr. Silver and the Company agree that neither party
will at any time disparage the other in any manner likely to be harmful to the
other party, its business reputation, or the personal or business reputation of
its directors, shareholders, and employees, provided that each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process, and within a reasonable time prior
to making any such response shall provide notice to the other party of such
process.
12. CONFIDENTIALITY. The provisions of this Agreement shall be held in
strictest confidence by Mr. Silver and the Company and shall not be publicized
or disclosed in any manner whatsoever. Notwithstanding the prohibition in the
preceding sentence: (a) Mr. Silver may disclose this Agreement, in confidence,
to his 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. In particular (and without limitation), Mr. Silver agrees not to discuss
this Agreement with any present or former employees, consultants, independent
contractors or other personnel of the Company.
13. RELEASE OF CLAIMS. Except as otherwise set forth in this Agreement,
Mr. Silver hereby releases, acquits and forever discharges the Company, its
officers, directors, agents, attorneys, servants, employees, shareholders,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed, arising out
of or in any way related to agreements, events, acts or conduct at any time
prior to and including the execution date hereof, including but not limited to:
any and all such claims and demands directly or indirectly arising out of or in
any way connected with Mr. Silver's employment with the Company or the
termination of that employment; claims or demands related to salary, bonuses,
draws, commissions, stock, stock options, or any other ownership interests in
the Company, vacation pay, fringe benefits, expense reimbursements, sabbatical
benefits, severance benefits, or any other form of compensation; claims pursuant
to any federal, state or local law or cause of action including, but not limited
to, the federal Civil Rights Act of 1964, as amended; the federal Age
Discrimination in Employment Act of 1967, as amended ("ADEA"); the federal
Americans with Disabilities Act of 1990; the California Fair Employment and
Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; harassment; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
14. ADEA WAIVER. Mr. Silver acknowledges that he is knowingly and
voluntarily waiving and releasing any rights he may have under the ADEA. He also
acknowledges that the consideration given for the waiver in the above paragraph
is in addition to anything of value to which he was already entitled. He further
acknowledges that he has been advised by this writing, as required by the ADEA
that: (a) his waiver and release do not apply to any claims that may arise after
the Effective Date of this Agreement; (b) he has been advised to consult with an
attorney prior to executing this Agreement; (c) he has twenty-one (21) days
within which to consider this Agreement (although he may choose to voluntarily
execute this Agreement earlier); (d) he has seven (7) days following the
execution of this Agreement to revoke the Agreement; (e) this Agreement shall
not be effective until the date upon which the revocation period has expired,
which shall be the eighth day after this Agreement is executed by Mr. Silver,
provided that the Company has also signed the Agreement by that date ("Effective
Date").
15. SECTION 1542 WAIVER. Mr. Silver acknowledges that he has read and
understands Section 1542 of the Civil Code of the State of California which
reads 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.
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Mr. Silver hereby expressly waives and relinquishes all rights and benefits
under that section and any law or legal principle of similar effect in any
jurisdiction with respect to the release of unknown and unsuspected claims
granted in this Agreement.
16. LIQUIDATED DAMAGES. Both Mr. Silver and the Company agree that it
would be impracticable and extremely difficult to ascertain the amount of actual
damages caused by material breach of the nondisparagement or confidentiality
provisions set forth in paragraphs 11 and 12 of this Agreement, respectively.
Therefore, Mr. Silver and the Company agree that, in the event it is
established, pursuant to the Dispute Resolution provision (paragraph 18), that
Mr. Silver has violated such provisions, Mr. Silver shall pay to the Company, as
liquidated damages, ten (10) thousand dollars ($10,000) for each breach. Mr.
Silver and the Company further agree that this liquidated damages provision
represents reasonable compensation for the loss which would be incurred by the
Company due to any such breach. Mr. Silver also agrees that nothing in this
section is intended to limit the Company's right to obtain injunctive and other
relief as may be appropriate.
17. NO ADMISSIONS. It is understood and agreed by Mr. Silver and the
Company that this Agreement represents a compromise settlement of various
matters, and that the promises and 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.
18. DISPUTE RESOLUTION. Unless otherwise prohibited by law or specified
below, all disputes, claims, and causes of action, in law or equity, arising
from or relating to this Agreement or its enforcement, performance, breach, or
interpretation shall be resolved solely and exclusively by final and binding
arbitration through Judicial Arbitration & Mediation Services/Endispute, Inc.
("JAMS") under the then existing JAMS arbitration rules. However, nothing in
this section is intended to prevent either party from obtaining injunctive
relief in court to prevent irreparable harm pending the conclusion of any such
arbitration.
19. ENTIRE AGREEMENT. This Agreement, including Exhibits A and B,
constitutes the complete, final and exclusive embodiment of the entire agreement
between Mr. Silver 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 Mr. Silver 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 own free will.
20. 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 heirs, successors and
assigns.
21. WARRANTIES. Mr. Silver warrants and represents that there are no
liens or claims of lien or assignments in law or equity or otherwise on or
against any of the claims or causes of action released herein, and, further,
that Mr. Silver is fully entitled and duly authorized to give this complete and
final general release and discharge.
22. 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.
23. 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.
24. 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.
25. 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.
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IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
<TABLE>
<S> <C>
ROBERT SILVER, COMPRESSION LABS, INC.,
an individual a corporation
/s/ Robert Silver By: /s/ Keith Copeland
Robert Silver Keith Copeland
Vice President, Human Resources
Date: November 29, Date: November 29,
1995 1995
</TABLE>
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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EXHIBIT B
RELEASE AGREEMENT
In consideration for the severance payments and benefits the Company will
pay me under paragraph 4 of the foregoing Agreement, to which I am not otherwise
entitled, I hereby release and forever discharge the Company, its officers,
directors, agents, attorneys, employees, stockholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct during the Transition Period,
including but not limited to: all such claims or demands directly or indirectly
arising out of my employment or the termination of my employment, claims or
demands related to salary, bonuses, draws, commissions, stock, stock options, or
any other ownership interests in the Company, vacation pay, fringe benefits,
expense reimbursements, severance pay, sabbatical benefits or any other form of
compensation; claims pursuant to any federal, state or local law or cause of
action including, but not limited to, the federal Civil Rights Act of 1964, as
amended; the California Fair Employment and Housing Act, as amended; the federal
Americans with Disabilities Act of 1990; the federal Age Discrimination in
Employment Act of 1967, as amended ("ADEA"); other discrimination claims; tort
law; contract law; wrongful discharge; harassment; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the ADEA. I also acknowledge that the consideration
given for the waiver in the above paragraph is in addition to anything of value
to which I was already entitled. I further acknowledges that I have been advised
by this writing, as required by the ADEA that: (a) my waiver and release do not
apply to any claims that may arise after the Release Effective Date of this
Release Agreement; (b) I have been advised to consult with an attorney prior to
executing this Release Agreement; (c) I have twenty-one (21) days within which
to consider this Release Agreement (although I may choose to voluntarily execute
this Release Agreement earlier); (d) I have seven (7) days following the
execution of this Release Agreement to revoke the Release Agreement; (e) this
Release Agreement shall not be effective until the date upon which the
revocation period has expired, which shall be the eighth day after this Release
Agreement is executed by me, provided that the Company has also signed the
Agreement by that date ("Release Effective Date").
I acknowledge that I have read and understand Section 1542 of the Civil
Code of the State of California which reads 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. I hereby expressly waive and
relinquish all rights and benefits under that section and any similar law of any
jurisdiction with respect to the release for unknown and unsuspected claims I am
granting in this Release.
Date: , 1996 By:
Robert Silver
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