EXHIBIT 10.33
[iAsiaWorks, Inc. Logo] AsiaWorks, Inc.
U.S. HEADQUARTERS
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Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
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iAsiaWorks
Global Technology. Asian Focus.
Private & Confidential/Addressee Only
September 30, 2001
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[ADDRESS INTENTIONALLY OMITTED]
Dear ▇▇▇
This letter sets forth the separation and severance agreement (the "Agreement")
which iAsiaWorks, Inc. (the "Company") is offering to you to aid in your
employment transition.
1. Separation: Your last day of employment with the Company will be September
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30, 2001, (the "Separation Date"). However, for purposes of this Agreement,
and with respect to your Original Agreement (as defined herein), it is
agreed that you have been terminated Without Cause and, other than as set
forth in this Agreement, and would be entitled to all rights and privileges
which that entails under the Original Agreement.
2. Accrued Salary and Vacation: On or before the Separation Date, the Company
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will pay you all accrued salary, and all accrued and unused vacation earned
through the Separation Date, subject to standard payroll deductions and
withholdings. You are entitled to these payments regardless of whether or
not you sign this Agreement.
3. Return of Company Property: Unless otherwise agreed, you must have
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returned all Company Documents and Materials as provided in the Proprietary
Information and Inventions Agreement which you have signed, including
without limitation laptop computers, cell phones, calling cards, printers,
fax machines, LCD projectors, security badges, office keys, and the like,
and all Company documents (and copies of documents), including, but not
limited to, Company files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded
information, and any materials of any kind which contain or embody any
proprietary or confidential information of the Company (and all
reproductions thereof). For the avoidance of doubt, the severance
settlement, as below, being offered to you under the terms of this
Agreement, is fully contingent upon your full compliance with the terms
regarding Return of Company Property, as identified in this clause of this
Agreement.
4. Settlement:
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(a) Severance. Your original employment agreement with the Company,
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dated May 15, 2001, as amended (the "Original Agreement"), provided
for three (3) months severance upon termination of employment with the
Company outside of a Change of Control (as defined therein), where the
Company was unable to obtain financing. You and the Company have each
agreed, that because of the company's difficult financial condition
and in light of your recent contributions, in place of the severance
set forth in the Original Agreement under which you are contractually
entitled to 3 months of severance, the Company will pay you, as
severance, the sum of money which is equivalent to one and one-half
(1 1/2) months of your base wage in effect as of the "Effective Date",
as defined in paragraph 16 below subject to standard payroll
deductions and withholdings (the "Settlement Payment"). This amount
will be paid in one (1) lump sum within two (2) calendar days of the
"Effective Date" as defined in paragraph 16 below.
5. Stock Options; Stock Purchase: Your rights, if any, to purchase shares of
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the Common Stock of the Company remain governed by and subject to the
iAsiaWorks, Inc. 2000 Stock Incentive Plan Stock Option Agreement between
you and the Company (the "Stock Option Agreement"). You must exercise any
vested shares within one (1) calendar year of the Separation Date. Except
as described herein, your right, if any, to exercise those shares which
have vested as of the Separation Date shall be subject to and in accordance
with the terms of the Stock Option Agreement(s). All terms of the Stock
Option Agreement(s) remain in full force and effect. Similarly, your
rights, if any under the iAsiaWorks, Inc., Employee Stock Purchase Plan
continue to be governed by the documents governing said iAsiaWorks, Inc.,
Employee Stock Purchase Plan.
6. No Further Compensation: You acknowledge that, except as expressly provided
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in this Agreement, you will not receive any additional salary, bonuses,
vesting of stock options, stock, commissions, other compensation, severance
or benefits from the Company after the Separation Date, except for valid
and approved expenses incurred by the employee on behalf of the Company,
which must be submitted within seven (7) days of the Effective Date of this
Agreement.
7. Nondisparagement: You agree not to criticize, denigrate, or disparage the
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Company, any of its employees, representatives, agents, officers,
directors, subsidiaries, affiliated entities, business interests, pursuits,
and products or services.
8. Release of Claims: On behalf of yourself and your heirs and assigns, you
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hereby forever release the Company and its owners, stockholders, parent
corporation[s], affiliates, divisions, subsidiaries, assigns and
affiliates, predecessors, successors, officers, managers, employees,
insurers, representatives and agents from all claims, liabilities, demands,
causes of action, costs, expenses, attorneys fees, damages, indemnity and
obligation of every kind and nature, 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 claims based upon contract, tort or statute arising out of, based
upon, or relating to your hire, offer letter, employment, remuneration or
termination from employment with the Company, including any claims arising
under Title VII of the Civil rights Act of 1964, as amended; the Equal Pay
Act, as amended; the Age Discrimination in Employment Act ("ADEA"), as
amended; the Employee Retirement Income Security Act, as amended; the Older
Workers Benefit Protection Act; as amended; the California Fair Employment
and Housing Act, as amended; the California Labor Code, as amended; and/or
any other local, state or federal laws and regulations governing
discrimination in employment, the payment of wages and benefits, and all
other laws and regulations relating to employment. You acknowledge that
your decision to sign this Agreement is knowing and voluntary. This
Agreement does not apply to any claims of age discrimination under ADEA
arising after the date you sign this Agreement, and does not apply to
claims for unemployment insurance or workers' compensation benefits. This
Agreement does not affect your rights, if any, under the Company's 401(k)
plan; nor does is it affect your rights, or those of your eligible
dependents, if any, to health care continuation benefits pursuant to the
Consolidated Omnibus Budget Reconciliation Act (COBRA). The Company,
however, acknowledges and agrees that this release does not apply to,
release, or in any way limit the Company's (including, but not limited to,
its affiliates, subsidiaries, divisions, assigns, and insurers) obligation
to indemnify you for any losses, judgments, settlement payments, attorneys'
fees, court costs, or litigation expenses incurred or sustained by you as a
direct or indirect result of, or arising out of, your employment with the
Company or your service as a member of the Company's Board of Directors:
(a) to the extent such indemnity is available under the Company's
director's and officer's liability insurance policy (the Company
acknowledges the existence of policy # ▇▇▇-▇▇-▇▇ entered into with National
Union Fire Insurance Company of Pittsburgh, PA (an AIG company) and policy
# ELU 81898-00 entered into with XL USA (Greenwich Insurance Company)), (b)
to the extent such indemnity is authorized by the Company's articles or
by-laws, and (c) to the extent permitted by law. The Company acknowledges
and agrees that its obligation to indemnify you includes the obligation to
advance to you reasonable attorneys' fees, court costs, and litigation
expenses when and as such attorneys' fees and expenses are incurred by you
in the defense of any claim, subpoena, investigation or civil or criminal
action. Furthermore, notwithstanding anything to the contrary contained in
this Agreement, the obligation to indemnify you and the terms of your
Indemnification Agreement with the Company, dated May 29, 2001 (the
"Indemnification Agreement"), shall remain in full effect so long as you
continue to serve as a member of the Company's Board of Directors and/or
you may be subject to litigation or a claim resulting from your service as
an employee or member of the Company's Board of Directors.
9. General Release. You expressly waive and release any and all rights and
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benefits under Section 1542 of the Civil Code of the State of California
(or any analogous law of any other state), 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.
Furthermore, you and the Company agree and understand that if, hereafter,
they discover facts different from or in addition to those which they now
know or believe to be true, the waivers contained within this Agreement
shall be and remain effective in all respects.
10. Right to Advice of Counsel: You have the right to consult with a lawyer
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so that you are fully aware of your rights and obligations under this
Agreement.
11. Non-Admission. Nothing contained in this letter shall constitute or be
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treated as an admission by you or the Company of liability, of any
wrongdoing, or of any violation of law.
12. Confidential Information and Invention Assignment Agreement;
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Non-Solicitation of Company Employees. At all times in the future, you will
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remain bound by the Company's Proprietary Information and Inventions
Agreement. It is a condition of your eligibility for benefits under this
Agreement that you have signed and delivered to the Company the Proprietary
Information and Inventions Assignment Agreement. You understand and agree,
pursuant to Section F of the Proprietary Information and Inventions
Agreement, that during the term of your employment and for one (1) year
thereafter, you will not encourage or solicit any employee of the Company
to leave the Company for any reason or to accept employment with any other
company, and that as part of this restriction, you agree not to interview
or provide any input to any third party regarding any such person during
the period in question.
13. Sole Agreement. You agree that this Agreement, in addition to the
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Proprietary Information and Inventions Assignment Agreement, the
Indemnification Agreement and the Stock Option Agreement, constitutes an
integration of the entire understanding and agreement between you
and the Company with respect to the matters referred to in this Agreement,
the Proprietary Information and Inventions Assignment Agreement, the
Indemnification Agreement and the Stock Option Agreement. Any
representation, promise or condition, whether written or oral, between you
and the Company with respect to the matters referred to in this Agreement,
which is not specifically incorporated in this Agreement shall not be
binding upon either you or the Company and both you and the Company
acknowledge that neither you nor the Company have relied, in entering into
this Agreement, upon any representations, promises or conditions not
specifically set forth in this Agreement, the Proprietary Information and
Inventions Assignment Agreement and the Stock Option Agreement. No prior
oral or written understanding, covenant or Agreement between you and the
Company, including the Original Agreement, with respect to matters referred
to in this Agreement, shall survive the execution of this Agreement;
provided, however, that Original Agreement may be revived under limited
circumstances pursuant to Paragraph 14 herein. Both you and the Company
assume the risk of any misrepresentation, concealment or mistake, and if
either you or the Company should subsequently discover that any fact relied
upon in entering into this Agreement was untrue, or that any fact was
concealed, or that the understanding of the facts was incorrect, neither
you nor the Company will be entitled to set aside this Agreement by reason
thereof.
14. Condition to Mutual Release of Claims. You and the Company agree that the
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mutual release of claims in Paragraph 8 is conditioned upon your receipt
and retention of the Settlement Payment and other consideration as
contemplated by this Agreement. Specifically, if, and only if, you are
compelled by a judgment or order of a court of competent jurisdiction or in
good faith settlement demand to disgorge, return, or pay over to the
Company or any third-party (if such payment is directly related to the
Settlement Payment) any portion of the Settlement Payment, including but
not limited to any right of repayment arising by operation of any law
relating to avoidable transfers made by those who are the object of any
bankruptcy, receivership, or insolvency proceeding, including any
assignment for the benefit of creditors, any reorganization case under the
bankruptcy laws or any successor thereto ("Bankruptcy"), then the mutual
release in Paragraph 8 shall be deemed ineffective. The parties agree that
if the releases herein become ineffective, the Company shall once again
recognize the Original Agreement and it shall once again take precedence
over this Agreement, which shall be deemed null and void. Additionally, you
shall be free to pursue any and all claims against the Company in either
litigation or by way of arbitration (unless those claims are required to be
brought in bankruptcy court) and shall be entitled to claim any amounts due
under the Original Agreement.
15. Time to Consider Agreement. You have up to seven (7) calendar days after
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receipt of this letter within which to review it, and to discuss it with an
attorney of your own choosing regarding whether or not you wish to execute
it.
16. Revocation Period. You have seven (7) calendar days after you have signed
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this Agreement during which time you may revoke this Agreement. If you wish
to revoke this Agreement, you may do so by delivering a letter of
revocation to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ at c/o iAsiaWorks, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, during the seven (7) calendar day
revocation period. Because of this revocation period, you understand that
the terms and conditions set forth in this letter shall not become
effective or enforceable until the eighth (8th) calendar day after the date
you sign this letter (the "Effective Date").
17. Severability, Governing Law. If any provision of this Agreement is
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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 shall be modified by the court so as to be rendered
enforceable. This Agreement shall be deemed to have been entered into and
shall 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 to me. You may keep the enclosed copy.
I thank you for your efforts on behalf of iAsiaWorks, Inc. and wish you luck in
your future endeavors.
Sincerely,
IASIAWORKS,INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CEO
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My agreement with the above terms is signified by my signature below.
Furthermore, I acknowledge that I have read and understand this letter, have
been advised to discuss it with an attorney of my own choosing, and that I sign
this release of all claims voluntarily, with and full appreciation.
Dated: 10/9/01 /s/ ▇▇▇ ▇▇▇▇▇▇
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Employee Name