Exhibit No. 10.1
SEPARATION AND RELEASE
AGREEMENT:
THIS SEPARATION AND RELEASE AGREEMENT (the
“Agreement”) is entered into as of the 19th day of
September, 2008, by and between, Jeffrey Oscodar
(“Employee”) and ZVUE Corporation, and its parents,
subsidiaries, and affiliates (collectively referred to herein as
the “Company”).
WHEREAS, Employee and the Company are parties to an
Employment Agreement dated as of June 26, 2006 (the
“Employment Agreement”);
WHEREAS, Employee currently serves as a director, and is
employed as the President and Chief Executive Officer of the
Company;
WHEREAS, this Agreement governs the terms of
Employee’s separation from the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereby
agree as follows:
1.
Effective Date of
Resignation . Employee
acknowledges that, as of the date of this Agreement, he is
resigning from all positions with the Company, including his
positions as President and Chief Executive Officer and as a
director of the Company (the “Resignation Date”).
Employee agrees to execute any and all documents as may be
reasonably necessary to confirm his resignation from such
positions. Employee acknowledges that, as of the date of this
Agreement (with the exception of the payments and benefits to be
provided to the Employee as set forth in Section 2 below), the
Company has paid Employee any and all compensation, salary, bonus
or other payments as may be due to him. Employee acknowledges that
he is not entitled to any other payments, compensation or benefits
from the Company other than as are set forth in Section 2 below).
Employee further understands and agrees that, as of the Resignation
Date, he is no longer authorized to incur any expenses,
obligations, or liabilities on behalf of the Company and that he
has submitted for reimbursement any and all expenses incurred for
which he seeks reimbursement. The Employee further understands and
agrees that, as of the Resignation Date, shall no longer serve as
agent of the Company and he is no longer authorized to conduct any
business on behalf of the Company or to hold himself out as an
officer, employee, agent or representative of the Company. As of
the Resignation Date, the Employment Agreement shall terminate,
provided, however all provisions of the Employment Agreement that
by their terms shall survive termination, including without
limitation, Sections 13, 14, 15, and 16 thereof, shall survive such
termination and if a specific duration is specified shall continue
for the duration set forth.
2.
Severance . As severance, Employee shall receive the
following payments and/or benefits and Employee is not entitled to
any other payments, salary, bonus, compensation or benefits from
the Company except as set forth within this paragraph 2:
(i) The Company shall continue to make available
to Employee health benefits as were provided to Employee prior to
the Resignation Date through the maximum time period for which
COBRA would be available to Employee, which may be satisfied by
Company by payment of Employee’s COBRA premium, in an amount
consistent with the Company’s portion prior to the
Resignation Date, provided Employee must timely elect and otherwise
satisfy all COBRA requirements and payment obligations not assumed
by Company; and
(ii) The Company shall take all steps necessary,
by resolution of its Board of Directors or Compensation Committee
(as Administrator of the Plan) and does hereby extend the post
termination exercise period of all vested and unvested stock
options or restricted stock awards made to Employee pursuant to the
Company’s 2003 Stock Option/Stock Issuance Plan or any other
plan or award, all such options and awards, whether vested or
unvested, to be immediately vested as of the Resignation Date, the
exercise price to be revised to be equal to the closing price per
share as reported on NASDAQ on the date of this Agreement, and the
term thereof to extend for the original term of such awards without
regard to any termination date of Employee (for the absence of
doubt, Section I.C. (1)(i) of the Plan shall be inapplicable and
the options and other awards shall not have the effect of
termination of any option three months following termination nor
shall stock awards, if any terminate upon termination).
(iii) Until all periods under any statute of
limitations applicable to claims which may be able to be asserted
against any officer or director in office prior to the date hereof
under any federal or state law, rule or regulation, or in any
action that may be asserted by any shareholder of Company, against
Employee for any actions taken by Employee in any capacity prior to
the date hereof, without the prior written consent of Employee, the
Company shall continue to maintain in full force and effect naming
Employee as a covered person thereunder in such aggregate amount
and with such coverage, and subject to such terms and conditions
relating to matters such as deductibles, covered claims,
allocation, defense cost coverage and similar matters at no less
than the current level presently in effect, and with an insurer
possessing a rating at least equivalent to that of the present
carrier of the Company’s Director’s and Officers
Liability Insurance Policy (the Executive and Organization
Liability Insurance Policy), at Company’s sole cost and
expense. Company shall pay in advance the full annual premium for
the policy period to commence on March 6, 2009 and expiring March
6, 2010, with such prepayment to be made no later than November 15,
2008. The Company further agrees to provide Employee, and shall
request the Company’s insurer provide Employee, with prompt
notice of any change in coverage (including pending or threatened
termination of coverage), and agrees that failure to provide such
notice not in accordance with this section will constitute a breach
of this Agreement. The Company agrees that any breach or threatened
breach of the provisions of this paragraph would cause Employee to
suffer irreparable harm and shall be entitled to injunctive relief
to enforce the provisions of this paragraph.
(i)
Company . The Company hereby irrevocably and
unconditionally releases the Employee of and from any and all
claims, demands, actions, causes of action, rights of action,
contracts, controversies, covenants, obligations, agreements,
damages, penalties, interest, fees, expenses, costs, remedies,
reckonings, extents, responsibilities, liabilities, suits, and
proceedings of whatsoever kind, nature, or description, direct or
indirect, vested or contingent, known or unknown, suspected or
unsuspected, in contract, tort, law, equity, or otherwise, under
the laws of any jurisdiction, which it had, now has or may have
against the Employee, as of the date of this Agreement and up to
and including the Resignation Date, by reason of any actual or
alleged act, omission, transaction, practice, conduct, statement,
occurrence, or any other matter, within the reasonable scope of the
Employee’s employment. The Company represents that, as of the
date of this Agreement, there are no known claims relating to the
Employee and waives the provisions of California Civil Code Section
1542.
(ii)
Employee . Employee irrevocably and unconditionally
releases the Company, its predecessors, parents, subsidiaries, and
affiliates, and its past and present officers, and directors
(collectively, the “
