SEPARATION AND RELEASE AGREEMENT
The parties to this Separation and Release Agreement (Agreement) are SoftNet
Systems, Inc., a Delaware corporation ("Company") and Lawrence B. Brilliant,
(Employee) RECITALS
A. Employee was employed as Chief Executive Officer for SoftNet Systems, Inc.
B. Employee resigned as Chief Executive Officer effective December 4, 2000,
C. Employee resigned as Director and Chairman of the Board of Directors for
SoftNet Systems, Inc., effective December17, 2000.
D. Employee has an Employment Agreement with Company dated April 7, 1998, and
amended on October 29, 1999 and November 20, 2000 (Attachments 1, 2, and 3)
and an Indemnification Agreement dated April 14, 1999 (Attachment 4) all of
which are incorporated herein by reference
Therefore, in consideration of the mutual promises set forth below, the parties
agree as follows:
1. The Company agrees to provide to Employee upon the legally enforceable date
of this Agreement (seven (7) days following the execution of the Agreement) the
sum of $975,000 minus items listed on Attachment 5). Employer will withhold
taxes on the amount paid in accordance with all applicable local, state and
federal laws. Employee will also receive payment for all vacation accrued
through December 4, 2000.
2. Employee will (a) receive installment payments of $10,000 annually, paid in
accordance with the Company's normal payroll cycles, and (b) will remain
eligible for medial, dental, vision and life insurance coverage under the
Company's insurance plans until December 31, 2002. If at any time, from
execution of this agreement until December 31, 2002, Employee is ineligible to
receive Company health benefits, the Company will reimburse Employee for his
COBRA premium payments for health insurance coverage for Employee and his family
until December 31, 2002 (or, if Employee are ineligible for COBRA, payment for
any other reasonable health insurance plan providing comparable coverage
Employee may acquire). Employee may, in his sole discretion, terminate provision
(a) of this paragraph 2 and shall then be paid $20,000, less amounts already
paid pursuant to paragraph (a).
3. All stock options granted to Employee will cease to vest as of December 4,
2000, however Employee will be eligible to exercise such vested options through
March 5, 2001.
4. Such agreements and commitments by the Company as specified in paragraphs 1,
2 and 3 are in full payment of any and all claims arising from, related to, or
in connection with Employee's employment with the Company, including, but not
limited to, all claims for breach of contract, fraud, wrongful discharge,
misrepresentation, defamation, violation of public policy, breach of the implied
covenant of good faith and fair dealing, personal injury, emotional distress,
sexual harassment, and age, race, sex or other prohibited discrimination; all
liabilities for the payment of any sums for accrued earnings, bonuses, severance
pay, sick leave or holiday plans, and any employee benefits; and attorneys'
fees.
4. Employee represents and warrants the Employee has returned to Company all
Company's property, books, lists, records, other documents and equipment.
Employee covenants that should such items be later discovered in his possession
or any additional items of Company's property, Employee agrees to promptly
return such property to the Company. Employee acknowledges that he has received
any personal property belonging to him that was on Company's premises.
5. Employee, for himself, his successors, administrators, heirs, and assigns,
hereby fully releases, waives and forever discharges Company, any affiliated
companies or subsidiaries, alter egos, their predecessors, successors,
affiliates, assigns, shareholders, directors, officers, agents, attorneys and
employees, whether past, present or future (the "Released Parties") from any all
actions, suits, debts, demands, damages, claims judgments or liabilities of any
nature including costs and attorneys' fees, whether known or unknown arising out
of Employee's employment with or separation from any of the Released Parties,
such as (by way of example only) any claim for bonus, severance, or other
benefits apart from the benefits stated herein; breach of contract; wrongful
discharge; impairment of economic opportunity; any claim under common-law or at
equity; defamation; intentional infliction of emotional harm; any tort; claims
for reimbursement, claims for commissions; or claim for employment
discrimination under any state, federal, local law, statute or regulation
including but not limited to, claims under Title VII of the Civil Rights Act of
1964 or under the California Fair Employment and Housing Act. However, both the
Company and Employee recognize that there are prior indemnification agreements,
including but not limited to that certain agreement between the Company and
Employee dated April 14, 1999 (Attachment 4) which remain in full force and
effect. The Company acknowledges that nothing in this Agreement limits the
Employee's rights or remedies under said indemnification agreements including
but not limited to the Employee's rights as indemnitee to sue for breach of said
agreements or to otherwise seek enforcement and/or interpretation of said
agreements or to be fully compensated for all expenses incurred in defending an
action instituted by the Company to enforce or interpret said indemnification
agreements. Employee acknowledges and agrees that this release, the release
contained in paragraph 7, and the covenant not to sue set forth in paragraph 9
are essential and material terms of the Agreement and that, without such release
and covenant not to sue, no agreement would have been reached by the parties.
Employee understands and acknowledges the significance and consequences of this
release and this Agreement.
6. Employees specifically waives and releases Company from all claims he may
have as of the date he signs this Agreement regarding claims or rights arising
under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
ss. 621 ("ADEA"). This paragraph does not waive rights or claims that may arise
under the ADEA after the date Employee signs this Agreement. Employee agrees
that this Agreement provides benefits to which he is not otherwise entitled and
that Company has advised Employee to consult an attorney prior to signing this
Agreement. Employee has been provided twenty-one (21) days within which to
consider whether he should sign this Agreement and waive and release all claims
and rights arising under the ADEA. Employee shall have seven days within which
to revoke this Agreement and this Agreement shall not become effective or
enforceable until that revocation period has expired.
7. It is understood and agreed that this is a full and final release applying
not only to all claims as defined in paragraphs 6, 7 and 9 that are presently
known, anticipated or disclosed to Employee, but also to all claims as defined
in paragraphs 6, 7 and 9 that are presently known, unknown, unanticipated, and
undisclosed to Employee. With the exception of prior indemnification agreements,
including but not limited to that certain agreement between the Company and
Employee dated April 14, 1999 (Attachment 4) which remain in full force and
effect, Employee hereby waives any and all rights or benefits that he may now
have, or may in the future have, under the terms of California Civil Code
Section 1542, which 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.
8. To the maximum extent permitted by law, Employee covenants not to sue or to
institute or cause to be instituted any action in any federal, state or local
agency or court against any of the Released Parties, for any of the claims
released in paragraphs 6 and 7 of this Agreement which arise out of actions
prior to the signing of this release. Nothing in this Agreement shall be
construed as for closing the Employee from instituting action for causes such as
defamation that occur subsequent to the signing of this Agreement.
9. Employees and Company agree that neither Employee nor the Released Parties
admit liability for, or violation of, any contract, any federal, state or local
statute or regulation, or any right protected under the common law.
10. Employee acknowledges that he (a) fully understands his right to discuss
this Agreement with his private attorney, (b) has carefully read and fully
understands this entire Agreement, and (c) is voluntarily entering into this
Agreement.
11. It is intended that the provisions of this Agreement shall be enforced to
the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. The provisions of this
Agreement shall be construed in accordance with the internal laws of the State
of California. In the event that any paragraph, subparagraph or provision of
this Agreement shall be determined to be partially contrary to governing law or
otherwise unenforceable, the paragraph, subparagraph, or provision and this
Agreement shall be enforced to the maximum extent permitted by law, and if any
paragraph, subparagraph or provision of this Agreement shall be determined to be
totally contrary to governing law or otherwise totally unenforceable, the
paragraph, subparagraph, or provision shall be severed and disregarded and the
remainder of this Agreement shall be enforced to the maximum extent permitted by
law.
12. The parties agree that (except in connection with required public
disclosure, in connection with tax reporting, or pursuant to legal process in
any legal action to enforce the terms of this Agreement) they, their agents, and
their family members, directors, officers, employees, and other Released Parties
shall keep confidential the terms of this Agreement. Employee and the Company
further agree not to disparage in the future either the Employee or any of the
Released Parties.
13. For one year following Employee's signing of this Agreement, Employee shall
not and shall not cause or facilitate any other person to solicit or enter into
an agreement for employment or consulting, joint venture or partnership
relationship or agreement with anyone who is an employee or consultant of the
Company. This shall not limit Employee from (a) continuing existing business
relationships or agreements or (b) having such a relationship or agreement with
anyone who is or has been an employee or consultant of the Company which is not
inconsistent with on-going performance of the employee's or consultant's
responsibilities and obligations to the Company.
14. Employee understands and agrees that in the course of his employment with
Company, he has acquired confidential information and trade secrets concerning
the operations of Company, Company's owners, subsidiaries and affiliates
(collectively the "Companies"), including, but not limited to, information
relating to the organization, employment policies, compensation and benefit
plans, and personnel and any data, formulae, specifications, proprietary
knowledge or information, customer list, marketing strategies, pricing and
credit policies, trade secrets, inventions or processes, owned, developed or
used in the course of Company's business (collectively "Confidential
Information"). Employee covenants and agrees that he will not disclose any
Confidential Information which is not available to the general public.
15. Employee agrees that this Agreement constitutes the entire understanding
between the parties with reference to the subject matter of this Agreement and
all prior negotiations and understandings, verbal or written, between Employee
and Company, relating to the items and things referred to in this Agreement have
been merged herein.
16. Any and all disputes arising out of or in any way related to Employee's
employment with, or separation from, Company, as well as any and all disputes or
claims arising out of or in any way related to this Agreement, including,
without limitations, fraud in the inducement of this Agreement, or relating to
the general validity or enforceability of this Agreement, shall be submitted to
final and binding arbitration before an arbitrator of the American Arbitration
Association, San Francisco, California, in accordance with the rules of that
body governing commercial disputes, and prevailing party shall be entitled to
reasonable costs and attorneys' fees. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
17. The parties hereto agree that if any covenant, paragraph or clause contained
in this Agreement, other than paragraphs 6, 7 and 9 is declared illegal, null or
void, or against public policy, for any reason, the remaining covenants,
paragraphs or clauses contained in this Agreement shall not be affected thereby.
18. Each reference to the Company herein shall include all subsidiaries and
affiliates of the Company.
19. The Company and Employee agree not to disparage each other in any way
whatsoever
Executed at San Francisco, California, this the ______ day of January, 2001.
SoftNet Systems, Inc.
Garrett J. Girvan
Chairman and CEO
Accepted and Agreed to:
Lawrence B. Brilliant, M.D.
