Exhibit 10.1
VIA E-MAIL
Abraham Rosler, individually
Abraham Rosler, as trustee
Abraham Rosler Family Trust dated July 30,
1999
Re:
Agreement and General Release of
Claims
Dear Mr. Rosler:
This agreement (“
Agreement ”) confirms our understanding and
agreement with you individually and as trustee of the Abraham
Rosler Family Trust dated July 30, 1999 (the “
Trust ”), with regard to the termination of
your employment with InfoSonics Corporation and its subsidiaries
and affiliates (collectively, “ Company ”
or “ Releasee ”) effective October 6,
2009, (“ the Separation Date ”), the
forfeiture of your options and options held by the Trust, and the
resignation of your officer and director positions. The following
provisions set forth the terms of the Agreement in exchange for a
release of claims, as outlined below.
1.
Separation Date
. By your signatures below,
you acknowledge that your employment with the Company has
terminated on the Separation Date and that you resign all of your
positions with the Company as of such date, including, without
limitation, your position as Executive Vice President, and as a
member of the Company’s Board of Directors.
Notwithstanding any revocation of this Agreement pursuant to
Paragraph 14, your resignation from the Board of Directors shall be
irrevocable as of the Separation Date.
2.
Acknowledgment of Payment of
Wages . By your
signature below, you acknowledge receipt of payment of all amounts
due from the Company for all salary, wages, bonuses, and
commissions earned through the Separation Date and all amounts due
from the Company for unused vacation time and other paid time
accrued by you through the close of business on the Separation
Date, less all applicable taxes and withholdings. Coverage under
your existing health benefits plan will continue through the end of
October 2009, and you will thereafter receive any benefits to which
you may be entitled under COBRA. If applicable, information on
COBRA coverage will be provided under separate cover. By signing
below, you further acknowledge that you have received all
reimbursement due you for your outstanding approved reimbursable
expenses, or have submitted expenses for reimbursement, if
any. By signing below, you acknowledge that the Company does
not owe you any other amounts, payments or other benefits.
You are entitled to receive the payments and benefits as described
in this paragraph without regard to whether you execute this
Agreement.
3.
Separation Benefits and
Agreements .
a.
In addition to the above-described
benefits and in exchange for you executing this Agreement and upon
its effectiveness in accordance with Paragraph 14, the Company
agrees to provide you with a lump sum of seventy-five thousand
dollars ($75,000), less all applicable taxes and withholdings
payable via direct deposit to yours Wells Fargo Bank
account.
b.
Additionally, you and, as
applicable, the Trust (i) represent and warrant that you own all
right, title and interest in and to an aggregate of 463,500 vested
and unvested options to purchase Company common stock currently
held by you and the Trust (collectively, the “
Options ”); (ii) have not exercised, attempted
to exercise or made any agreement, whether verbal or written, to
exercise any of the Options (iii) have not transferred,
hypothecated, hedged, imposed or permitted the imposition of any
lien, encumbered or otherwise impaired any of the Options or the
underlying common stock; or entered into an agreement to do so, and
(iv) hereby covenant and agree to surrender and forfeit all of the
Options to the Company as of the date of payment under Paragraph
3(a) upon the expiration of the revocation period set forth in
Paragraph 14, and you and the Trust shall hereafter not exercise,
transfer, hypothecate, lien, encumber or otherwise impair any of
such Options or the shares of Company common stock underlying such
Options or enter into any agreement to do so.
4.
Return of Company
Property . You
hereby represent and warrant to the Company that you have returned
to the Company, or will return no later than seven (7) days from
the date of your execution of this Agreement, all real or
intangible property or data of the Company of any type whatsoever
that has been in your possession or control, including, without
limitation, the Company’s CISCO VOIP phone.
5.
Waiver and Release of all
Claims . The
payments and promises set forth in this Agreement are in full
satisfaction of all accrued salary, vacation pay, bonus pay,
profit-sharing, stock options, termination benefits or other
compensation to which you may be entitled by virtue of your
employment and directorship with the Company, including your
separation from the Company. You hereby release and waive all
claims you may have against the Company in any capacity (including
as an employee, director, officer, stockholder and optionholder)
and its present and former owners, agents, officers, shareholders,
employees, directors, attorneys, subscribers, subsidiaries, parent,
affiliates, successors and assigns (collectively “
Releasees ”), whether known or not known,
including, without limitation, claims under any securities and
employment laws, including but not limited to, claims of unlawful
discharge, breach of contract, breach of the covenant of good faith
and fair dealing, fraud, violation of public policy, defamation,
physical injury, emotional distress, claims for additional
compensation or benefits arising out of your employment or your
separation of employment, claims under any laws and/or regulations
relating to employment or employment discrimination, including,
without limitation, claims under Title VII of the Civil Rights Act
of 1964, as amended, 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, the Older Workers
Benefit Protection Act, the California Fair Employment and Housing
Act, California Labor Code section 201, et seq . and section
970, et seq. , the Family an
