|
Exhibit
10.1
AGREEMENT AND GENERAL
RELEASE
This Agreement and
General Release (‘‘Agreement’’), is hereby
executed by and between Elias Typaldos
(‘‘Executive’’ or
‘‘you’’), and AXS-One Inc. (the
‘‘Company’’) on behalf of its past, present
and future parent entities, subsidiaries, divisions, affiliates and
related business entities, successors and assigns, assets, employee
benefit plans or funds, and any of its or their respective past,
present and/or future directors, officers, fiduciaries, agents,
trustees, administrators, employees and assigns, whether acting as
agents for the Company or in their individual capacities
(collectively the ‘‘Company Entities’’),
and sets forth the parties’ agreement regarding
Executive’s termination of employment.
1. The
Company and Executive agree that Executive’s last day of
employment with the Company will be August 31, 2007 (the
‘‘Termination Date’’). Executive’s
coverage under the various employee benefit plans maintained by the
Company shall terminate effective as of the Termination Date. You
will be paid your regular salary up to and including the
Termination Date. You will also be entitled to such vesting and
acceleration of Company stock option grants and restricted stock
grants as is provided in any applicable stock plan or grant. A list
of applicable grants is attached hereto as Exhibit A.
2. Following
the Effective Date of this Agreement (as defined in paragraph
‘‘18’’ below), and in exchange for your
waiver of claims against the Company Entities and compliance with
other terms and conditions of this Agreement, and provided you
execute, timely return and do not revoke this Agreement, the
Company agrees to pay you severance of $600,000. This payment will
be made to you as provided in Exhibit B. Executive may purchase, if
eligible, continuation health benefits coverage to the extent and
for the period provided by federal law (COBRA), however, provided
Executive executes, timely returns, and does not revoke this
Agreement, the Company will pay for Executive’s COBRA
benefits for the shorter of eighteen (18) months from the Effective
Date of this Agreement or until such time you become eligible for
similar health insurance coverage with a new employer, in addition
to, and not as a set off against, the severance set forth above.
For the avoidance of doubt, the Company paid COBRA benefits include
only medical, prescription, vision and dental insurance, and
excludes all other employee benefits you currently are entitled to
in your capacity as an employee of the Company. Salary and benefits
already paid to you beginning September 1, 2007 shall count towards
your severance hereunder.
You agree and
acknowledge that the payments and benefits provided for by the
above paragraphs constitute full payment to you in your capacity as
an employee of the Company of amounts which you might otherwise be
entitled under any policy, plan or procedure of the Company or
pursuant to any prior agreement or contract with the Company,
including but not limited to, your employment agreement dated
February 15, 2007 (the ‘‘Employment
Agreement’’).
You are under no
obligation to seek other employment and there shall be no offset
against any amounts due you under this Agreement on account of any
remuneration attributable to any subsequent employment that you may
obtain. Any amounts due hereunder are in the nature of severance
payments and are not in the nature of a penalty.
3. You
agree and acknowledge that the payment(s) and other benefits
provided pursuant to this Agreement are in full discharge of any
and all liabilities and obligations of the Company to you in your
capacity as an employee of the Company, monetarily or with respect
to employee benefits or otherwise, including but not limited to any
and all obligations arising under any alleged written or oral
agreement (including, but not limited to, your employment
contract), policy, plan or procedure of the Company and/or any
alleged understanding or arrangement between you and the
Company.
4. (a) In
consideration for the payment and benefits to be provided you
pursuant to paragraph ‘‘2’’ above, you, for
yourself and for your heirs, executors, administrators, trustees,
legal representatives and assigns (hereinafter referred to
collectively as ‘‘Releasors’’), forever
release and discharge the Company Entities from any and all claims,
demands, causes of action, fees and liabilities of any kind
whatsoever, whether known or unknown, which you ever had, now have,
or may have
against any of the
Company Entities in your capacity as an employee of the Company by
reason of any act, omission, transaction, practice, plan, policy,
procedure, conduct, occurrence, or other matter up to and including
the date on which you sign this Agreement. This release shall not
apply to or release any claims with respect to any of your rights
arising or preserved under the terms of this Agreement, or your
rights to indemnification as an officer and director of the
Company.
(b) Without
limiting the generality of the foregoing, this Agreement is
intended to and shall release the Company Entities from any and all
claims, whether known or unknown, which Releasors ever had, now
have, or may have against the Company Entities arising out of your
employment, and/or the termination of that employment, including,
but not limited to: (i) any claim under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Employee Retirement Income
Security Act of 1974 (excluding claims for accrued, vested benefits
under any employee benefit or pension plan of the Company Entities
in accordance with the terms and conditions of such plan and
applicable law), and the Family and Medical Leave Act; (ii) any
claim under the New Jersey Law Against Discrimination, the New
Jersey Equal Pay Act, the New Jersey Family Leave Act, and the New
Jersey Conscientious Employee Protection Act; (iii) any other claim
(whether based on federal, state, or local law, statutory or
decisional) relating to or arising out of your employment, the
terms and conditions of such employment, the termination of such
employment, and/or any of the events relating directly or
indirectly to or surrounding the termination of that employment,
including but not limited to breach of contract (express or
implied), wrongful discharge, detrimental reliance, defamation,
emotional distress, retaliation, discrimination or harassment under
any applicable law, or compensatory or punitive damages; and (iv)
any claim for attorneys’ fees, costs, disbursements and/or
the like. Nothing in this Agreement shall be a waiver of claims
that may arise after the date on which you sign this Agreement, nor
does this Agreement preclude you from filing a charge of
discrimination with the U.S. Equal Employment Opportunity
Commission (‘‘EEOC’’) or an analogous state
agency. You, however, waive any right you may have to recover
monetary or other damages, or attorneys’ fees or costs, based
on any such charge of discrimination or any action initiated by you
or on your behalf by a third party.
(c) You
acknowledge and agree that by virtue of the foregoing, you have
waived any relief available to you (including without limitation,
monetary damages, equitable relief and reinstatement) under any of
the claims and/or causes of action waived in this paragraph
‘‘4’’.
5. The
terms and conditions of this Agreement are and shall be deemed to
be confidential, and shall not be disclosed by a party to any
person or entity without the prior written consent of the other,
except if required by law, and to a party’s accountants,
attorneys, financial or investment adviser and/or immediate family
members (including parents and siblings), provided that, to the
maximum extent permitted by applicable law, rule, code or
regulation, they agree to maintain the confidentiality of the
Agreement. You further represent that you have not disclosed the
terms and conditions of the Agreement to anyone other than your
attorneys, accountants, financial or investment adviser and/or
immediate family members (including parents and siblings). For the
avoidance of doubt, the Company will be required by law to disclose
the full terms of this agreement in an 8-K or 10-Q filing with the
Securities and Exchange Commission, and file this agreement as an
exhibit to such filing.
6. You
acknowledge and reaffirm that you remain bound by the restrictive
covenants set forth in Paragraphs 11 and 12 of your Employment
Agreement. For purposes of clarification, the restrictive covenants
set forth in Subparagraph 11(a) of the Employment Agreement
specifically do not apply to your involvement in areas of a
competitor’s or a customer’s business that are not
related to the archival data management software business similar
to the business conducted by the Company, or to your involvement
with partners, prospects, customers or others associated with the
Company’s archival data management software
business.
7. All
developments, including inventions, trade secrets, discoveries,
improvements, and writings, which relate to the Company’s
operations, products or development efforts, which the Executive,
either by himself or with any other persons, has made, developed,
acquired or acquired knowledge of during his employment, is and
shall remain the sole and exclusive property of the Company. The
Executive hereby assigns, transfers and conveys, all of his right,
title and interest in and to any and all
such developments to
the Company and the Executive agrees to fully disclose, as soon as
practicable, all such developments to the Company. Upon the request
of the Company, the Executive will execute and deliver any and all
documents and do any and all other acts which are or may be
necessary or desirable to docume
|
