EXHIBIT 10.17
October 25, 2001
Mr. Paul Franklin
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RE: EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
Dear Paul:
This letter sets forth the terms of the employment transition and separation
agreement SONICblue Incorporated ("SONICblue" or the "Company") is offering to
you to assist in your employment transition with the Company ("Agreement "). You
may accept this offer by signing and returning a copy of this Agreement to the
Company as provided below.
1. SEPARATION. Your last day of employment with the Company will be not later
than March 2, 2003. You may terminate your employment earlier subject to the
provisions of Section 2(b) below. The last date of your employment as provided
in this Section 1 is hereafter referred to as the "Separation Date."
2. TRANSITION PERIOD. As a material term of this Agreement, you agree to the
following provisions which will be effective on the effective date of the
release described in Section 11 below.
(a) SERVICES AND AUTHORITY DURING TRANSITION PERIOD. From September 17, 2001,
through the Separation Date (the "Transition Period"), you will provide (or make
yourself available to provide) advisory services to the Company up to a total
100 hours. You will also assist in the transition of your job responsibilities
to other Company personnel. During the Transition Period, you will not have the
authority to enter into any contract or agreement with any third party, on
behalf of the Company, or to make any representation that might be binding upon
the Company.
(b) COMPENSATION AND BENEFITS DURING TRANSITION PERIOD. During the Transition
Period, you will continue to receive your current regular salary of $11,184.21
per Company pay period (less applicable withholdings and tax deductions) and
benefits, including coverage under the Company's medical, dental, and vision
plan, employee stock purchase plan and 401(k) plan, subject to the terms of
those plans, through the remainder of your employment with the Company,
provided, however, that you will not accrue any
Mr. Paul Franklin
October 25, 2001
Page 2
additional personal time off during the Transition Period. If you elect to
terminate your employment earlier than the March 2, 2003, the Company will cease
to provide you benefits under the above plans but will continue to pay you the
salary that would otherwise be paid to you for the remainder of the original
Transition Period under this Agreement (less applicable withholdings and tax
deductions) in accordance with the Company's usual payroll schedule, which is
currently a 14 day pay period, over the remainder of the original transition
period, provided that you deliver to the Company the signed and effective
release described in Section 13 below within twenty-one (21) days of the
employment termination date. Your right to received these payments may be
assigned to your estate or heirs upon your death.
3. ACCRUED SALARY AND PAID TIME OFF. On the Separation Date, the Company will
pay you all accrued salary, and all accrued and unused personal time off, earned
by you through the Separation Date subject to applicable withholdings and tax
deductions. You are entitled to these payments as a matter of law, whether or
not you sign this Agreement.
4. SEVERANCE PAY. On September 22, 1998, the Company entered into an agreement
with you under which the Company would pay you a severance payment in the event
your employment with the Company is involuntarily terminated ("Agreement
Regarding Severance"). In consideration for this Agreement, which supercedes
your agreement regarding severance, you agree that your right to such severance
payment under that agreement is hereby waived.
5. HEALTH INSURANCE. After the Separation Date, to the extent provided by the
federal COBRA law or, if applicable, state insurance laws, and by the Company's
current group health insurance policies, you will be eligible to continue your
group health insurance benefits at your own expense. A separate notice of your
COBRA rights will be provided to you.
6. EXPENSE REIMBURSEMENT. You agree that, on or before the Separation Date, you
will submit your final documented expense reimbursement statement reflecting all
business expenses you incurred through the Separation Date, if any, for which
you seek reimbursement. The Company will reimburse you for these expenses
pursuant to its regular business practice.
7. STOCK OPTION. During your employment the Company granted you an option to
purchase 805,475 shares (the "Options") of the Company's common stock, pursuant
to the Company's 1989 Stock Plans (the "Plan"). These Options will cease vesting
effective September 17, 2001, and as of that date options to purchase a total of
338,657 shares were vested and exercisable under the terms of the Options and
the Plan. You agree that upon your termination of employment on the Separation
Date, you will be have 3 months after the Separation Date to exercise your
Options under the terms of the Options and the Plans, provided that you deliver
the signed and effective release in Section 13 below. If you die prior to the
termination of the Options, the Options will expire on the later of (a) 3 months
after the Separation Date or (b) the close of business at the Company's
headquarters on the
Mr. Paul Franklin
October 25, 2001
Page 3
date six months after the date of your death. After your death and prior to
expiration of your Options, your estate or heirs may exercise the portions of
your Options that were vested and unexercised on the date of death.
8. OTHER COMPENSATION AND BENEFITS. Except as expressly provided in this
Agreement, you will not receive any additional compensation or benefits after
the Separation Date.
9. RETURN OF COMPANY PROPERTY. On the Separation Date or as earlier requested by
the Company, you agree to return to the Company all Company documents (and all
copies thereof) and other Company property in your possession or control,
including, but not limited to, Company files, correspondence, memos, notebooks,
notes, drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property and equipment,
credit cards, entry cards, identification badges and keys; and any materials of
any kind that contain or embody any proprietary or confidential information of
the Company (and all reproductions thereof in whole or in part) (collectively,
the "Company Property"). You agree to conduct a good faith and diligent search
of your belongings in advance of the aforementioned deadline to ensure your
compliance with the provisions of this Section 9.
10. PROPRIETARY INFORMATION OBLIGATIONS. You acknowledge your continuing
obligation (both during and after the Transition Period) to comply with your
Proprietary Information and Inventions Agreement, a copy of which is attached
hereto as Exhibit B.
11. INITIAL RELEASE.
(a) TERMS OF RELEASE. Except for the obligations expressly set forth in this
Agreement, and in exchange for the Transition Period employment and other
consideration that is being provided to you under this Agreement to which you
are not otherwise entitled, you hereby release, acquit and forever discharge the
Company, its parents and subsidiaries, and its and their respective officers,
directors, agents, servants, employees, attorneys, 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 date you sign this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with your employment with the Company, that September 22, 1998
Agreement Regarding Severance and any other agreements or demands related to
salary, performance or other bonuses, commissions, stock, stock options, or any
other ownership interests in the Company, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of benefit or compensation;
claims pursuant to any federal, state or local law, statute, or cause of action
including, but not limited to, the federal Civil Rights Act of 1964, as amended;
the federal Americans with
Mr. Paul Franklin
October 25, 2001
Page 4
Disabilities Act of 1990; the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination; harassment;
fraud; defamation; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
(b) EFFECTIVE DATE OF THIS AGREEMENT AND THE INITIAL RELEASE. You hereby
have been advised and understand that you have twenty-one (21) days from the
date of receipt to decide whether or not to sign this Agreement which period may
be shortened and waived by you. This period is designed to allow you to consult
with a financial advisor, accountant, attorney or anyone else whose advice you
choose to seek. You hereby have been advised and understand that after signing
this document you have seven (7) days to revoke your agreement to the terms of
this document. Any revocation should be in writing and delivered to the David
Gershon, General Counsel of the Company, by close of business at the end of the
seventh business day after signing this document. This Agreement and the release
of claims herein will not become effective until the seven (7) day revocation
period has passed.
12. SECTION 1542 WAIVER. You hereby acknowledge your understanding that under
this Agreement you are releasing any known or unknown claims you may have. You
therefore acknowledge that you have read and understand Section 1542 of the
California Civil Code, 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."
You expressly waive and relinquish all rights and benefits under that section
and any law of any jurisdiction of similar effect with respect to your release
of claims.
13. SEPARATION RELEASE. As part of this Agreement, you must also execute and
return to the Company the Separation Release, attached hereto as Exhibit A. You
must sign the Separation Release on the Separation Date or within twenty-one
(21) days thereafter. (The Separation Release may not be signed before the
Separation Date.) As provided in the Separation Release, you will have seven (7)
days to revoke the Separation Release. You acknowledge that you are not entitled
to receive the remaining severance payments during the original Transition
Period, or to the exercise period for the Options described in Section 7 unless
and until you execute the Separation Release and it becomes effective.
14. NONDISPARAGEMENT. You agree that you will not engage in any action that
disparages the Company or its officers, directors, managers, employees or
practices; or that disrupts or impairs its normal operations or harms the
reputation of the Company with its customers, suppliers or the public; or
interferes with existing contractual relationships with customers, suppliers or
Company associates. Nothing in this Agreement prevents you from responding
accurately and fully to any question, inquiry or request for information when
required by legal process.
Mr. Paul Franklin
October 25, 2001
Page 5
15. COOPERATION. You agree to cooperate with the Company following the
termination of your employment by being reasonably available to testify on
behalf of the Company or any subsidiary or affiliate in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Company, or any subsidiary or affiliate, in any such action, suit or
proceeding, by providing information and meeting and consulting with
representatives or counsel to the Company, or any subsidiary or affiliate, as
reasonably requested. The Company agrees to reimburse you for all expenses
actually incurred in connection with your provision of testimony or assistance
pursuant to this Section.
16. NO ASSISTANCE. You agree not to voluntarily provide assistance, information
or advice, directly or indirectly (including through any agent or attorney), to
any person or entity in connection with bringing any claim or cause of action of
any kind against the Company, nor will you induce or encourage any person or
entity to do so. Nothing in this Agreement prohibits you from testifying
truthfully under subpoena or providing other assistance under compulsion of law.
17. CONFIDENTIALITY. The provisions of this Agreement will be held in strictest
confidence by you and the Company and will not be publicized or disclosed in any
manner whatsoever; provided, however, that: (a) you may disclose this Agreement
in confidence to your 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, you agree not
to disclose the provisions of this Agreement to any current or former Company
personnel.
18. ARBITRATION. I agree that any future disputes between me and the Company
(the "parties ") including but not limited to disputes arising out of or related
to this Agreement and Release of Claims, will be resolved by binding
arbitration, except where the law specifically forbids the use of arbitration as
a final and binding remedy, in Santa Clara County, California in accordance with
the rules of the American Arbitration Association by one arbitrator appointed in
accordance with said rules. The Company will pay for the cost of the arbitration
but each of the parties will be responsible for the legal fees of his or its
legal counsel. The Arbitrator will apply California law, without references to
rules of conflicts law or rules of statutory arbitration, to the resolution of
any dispute. Judgment on the award rendered by the arbitrator may be entered in
any court having competent jurisdiction thereof. Notwithstanding the foregoing,
the parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
Section.
BINDING ON SUCCESSORS. This Agreement will be binding upon the Company and any
entity which is a successor by merger, acquisition, consolidation or otherwise
to the business formerly carried on by the Company, or an affiliate of any such
entity, and becomes your
Mr. Paul Franklin
October 25, 2001
Page 6
employer by reason of (or as the direct result of) any direct or indirect sale
or other disposition of the Company or substantially all of the assets of the
business currently carried on by the Company, without regard to whether or not
such person actively adopts this letter agreement.
20. MISCELLANEOUS. This Agreement, including all Exhibits, constitutes the
complete, final and exclusive embodiment of the entire agreement between you and
the Company with regard to the terms and conditions of your employment with the
Company and your anticipated termination of employment. It is entered into
without reliance on any promise or representation, written or oral, other than
those expressly contained herein, and it supersedes any other such promises,
warranties or representations and any other written or oral statements
concerning your rights to any compensation, equity or benefits from the Company,
its predecessors or successors in interest. This Agreement may not be modified
or amended except in a writing signed by both you and a duly authorized officer
of the Company. This Agreement will bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the benefit of
both you and the Company, their heirs, successors and assigns. If any provision
of this Agreement is determined to be invalid or unenforceable, in whole or in
part, this determination will not affect any other provision of this Agreement
and the provision in question will be modified by the court so as to be rendered
enforceable in a manner consistent with the intent of the parties insofar as
possible. Headings and subheadings in this Agreement are solely for convenience
and do not constitute terms of this Agreement. This Agreement may be signed in
counterparts and taken together will constitute one agreement. Facsimile
signatures will be deemed as effective as original signatures. This Agreement
will be deemed to have been entered into and will 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.
If this Agreement is acceptable to you, please sign below and return the
original, fully executed Agreement to Terese Farkas, Senior Vice President of
Human Resources and Administration, prior to 12:01 a.m. on November 15, 2001. (A
copy of the Agreement is also being provided to you for your records.) Please be
aware that the offer contained in this Agreement will automatically expire at
12:01 a.m. on November 15, 2001 if not accepted by you before that time.
If you have any questions regarding this letter, you may contact me directly at
__________.
I hope you agree to the terms set forth in this Agreement, I look forward to
your continued contributions to the Company in the months ahead.
Sincerely,
SONICBLUE INCORPORATED
Mr. Paul Franklin
October 25, 2001
Page 7
By: /s/ Terese Farkas
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Terese Farkas
Senior Vice President, Human Resources and Administration
Exhibit A - Separation Release
Exhibit B - Proprietary Information and Inventions Agreement
AGREED AND ACCEPTED:
/s/ Paul Franklin December 7, 2001
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PAUL FRANKLIN DATE
EXHIBIT A
SEPARATION RELEASE
1. I, Paul Franklin, agree to a mutual separation of my employment. I
understand that my employment with SONICblue Incorporated (the
"Company") ended effective _______, ____("Separation Date"), and that my
regular salary ended on that date.
2. Pursuant to that certain Employment Transition and Separation Agreement
dated October 25, 2001, with the Company ("Separation Agreement"), the
Company had continued my employment to the Separation Date and continued
my compensation and benefits under the Separation Agreement through that
date. In consideration for such continued employment and compensation
and benefits under the Separation Agreement, I agreed to deliver to the
Company this Separation Release.
3. I agree that in consideration for the provision of the compensation and
benefits described in the Separation Agreement, I hereby release, acquit
and forever discharge the Company, its parents and subsidiaries, and its
and their respective officers, directors, agents, servants, employees,
attorneys, 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 of this Agreement, including
but not limited to: all such claims and demands directly or indirectly
arising out of or in any way connected with my employment with the
Company or the termination of that employment; claims or demands related
to salary, bonuses, commissions, stock, stock options, or any other
ownership interests in the Company, vacation pay, fringe benefits,
expense reimbursements, severance pay, or any other form of
compensation; claims pursuant to any federal, state or local law,
statute, or cause of action including, but not limited to, the federal
Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990; the California Fair Employment and Housing
Act, as amended; tort law; contract law; wrongful discharge;
discrimination; harassment; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
4. On September 17, 1992, I signed the attached Employee's Proprietary
Information and Inventions Agreement regarding confidential information
and intellectual property in which I agreed to protect Company
confidential information both during and after my employment. That
agreement is incorporated by reference here. As a condition of accepting
the separation package set forth in Section 3 above, I reaffirm my
obligation to keep secret all confidential information that belongs to
the Company.
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5. I agree not to make any communications or engage in any conduct that is
or can reasonably be construed to be disparaging of the Company, its
officers, directors, founders, employees, agents, stockholders, products
or services.
6. I hereby expressly waive the provisions of California Civil Code section
1542, regarding the waiver of unknown claims. California Civil Code
section 1542 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.
7. As a condition for the Separation Agreement, I agree to keep
confidential the terms of this Agreement and Release of Claims and any
negotiations or discussions leading thereto. I understand that I am
permitted to disclose these terms to my accountant, attorney and spouse,
if any, provided such recipient of the information agrees to be bound by
the confidentiality requirement of this Section, or if otherwise
required by law.
8. If any term of this Agreement and Release of Claims is held to be
invalid, void or unenforceable, the remainder of this Agreement and
Release of Claims will remain in full force and effect and will in no
way be affected, and the parties will use their best efforts to find an
alternative way to achieve the same result.
9. The provisions of the Separation Agreement and this Agreement and
Release of Claims set forth the entire agreement between me and the
Company concerning my separation package and the separation of my
employment, provided however, that this Agreement and Release of Claims
does not supersede my obligations to maintain the confidentiality of
Company information, whether arising from the Employment Proprietary
Information and Inventions Agreement referred to above in Section 5, or
from operation of law. Any other promises, written or oral, are replaced
by the provisions of this Agreement and Release of Claims, and are no
longer effective unless they are contained in this document. This
Agreement and Release of Claims can only be changed in writing, signed
by me and the Chief Executive Officer of the Company.
10. I agree that any future disputes between me and the Company (the
"parties") including but not limited to disputes arising out of or
related to this Agreement and Release of Claims, will be resolved by
binding arbitration, except where the law specifically forbids the use
of arbitration as a final and binding remedy, in Santa Clara County,
California in accordance with the rules of the American Arbitration
Association by one arbitrator appointed in accordance with said rules.
The Company will pay for the cost of the arbitration but each of the
parties will be responsible for the legal fees of his or its legal
counsel. The Arbitrator will apply California law, without references to
rules of conflicts law or rules of statutory arbitration, to the
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resolution of any dispute. Judgment on the award rendered by the
arbitrator may be entered in any court having competent jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any
court of competent jurisdiction for preliminary or interim equitable
relief, or to compel arbitration in accordance with this Section.
11. I have been advised and understand that I have twenty-one (21) days from
the date of receipt to decide whether or not to sign this Agreement and
Release of Claims which period may be shortened and waived by me. This
period is designed to allow me to consult with a financial advisor,
accountant, attorney or anyone else whose advice I choose to seek.
12. I have been advised and understand that after signing this document I
have seven (7) days to revoke my agreement to the terms of this
document. Any revocation should be in writing and delivered to the Chief
Executive Officer of the Company, by close of business at the end of the
seventh business day after signing this document. This Agreement and
Release of Claims will not become effective until the seven (7) day
revocation period has passed.
13. By signing below, I acknowledge that I am entering into this Agreement
and Release of Claims knowingly and voluntarily. In addition, I hereby
acknowledge by my signature that I have carefully read and fully
understand all the provisions of this Agreement and Release of Claims.
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By my signature, I agree to and give this Separation Release to the Company.
Date: December 7, 2001 /s/ Paul Franklin
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Paul Franklin
EXHIBIT B
PROPRIETARY INFORMATION ND INVENTIONS AGREEMENT