Separation Agreement - Excite@Home and Don Hutchison
This Separation Agreement (the 'Agreement') is entered into by and between At
Home Corporation ('Excite@Home') and Don Hutchison ('Hutchison') as of January
31, 2000. The parties agree as follows:
1. Resignation. Hutchison has resigned from his position as SVP, General
Manager @Work for the Excite@Home effective as of December 31, 1999 and will
cease all employment with Excite@Home on February 15, 2000 (the 'Step Down
Date'). Hutchison acknowledges and agrees that his employment with Excite@Home
will terminate on the Step Down Date, and that after such date he will have no
right to employment with Excite@Home. Notwithstanding the foregoing, the
parties acknowledge that at a later date this Agreement may be amended by the
written consent of both parties to provide for a longer period of employment
and/or other benefits in connection with Hutchison's work in creating a new
venture focused on the work.com business portal. There is no express or implied
obligation, however, for either party to enter into such an amendment.
2. Benefits During Transition Period. From December 31, 1999 through the
Step Down Date (the 'Transition Period'), Hutchison will receive the same
employee benefits as he received prior to December 31, 1999 (including his
salary for the period, his current medical benefits, and continued stock
vesting) except that he will not participate in Excite@Home's executive bonus
plan for 2000.
3. Duties and Authority During the Transition Period.
(a) Duties. During the Transition period, Hutchison will continue to
abide by Excite@Home's Invention Assignment and Confidentiality Agreement; will
comply with all of Excite@Home's standard employment policies and procedures
including Excite@Home's guidelines governing trading by company personnel; and
will not engage in any dishonest, fraudulent or illegal activity in his capacity
as an Excite@Home employee.
(b) Authority. Hutchison agrees that he has no authority to act on
behalf of Excite@Home during the Transition Period or at any time thereafter,
and he will not represent to others that he has any such authority.
4. Benefits Following the Step Down Date. Upon the Step Down Date,
Hutchison will receive no further employee benefits except as expressly set
(a) Expenses. Hutchison will submit to Excite@Home within fifteen
(15) days of the Step Down Date any unreimbursed Excite@Home authorized business
expenses incurred by him on or before that date and Excite@Home will promptly
reimburse Hutchison for such expenses.
(b) Accrued Vacation Pay. Excite@Home shall pay Hutchison the value
of all unused and not lost vacation days accrued through the Step Down Date,
less all applicable tax
withholdings and other standard deductions.
(c) Medical and Dental Benefits; COBRA. Excite@Home will offer
Hutchison the opportunity to continue health and dental insurance coverage, at
Hutchison's own expense, to the extent required by COBRA. Hutchison
acknowledges that he has received the information and documentation required in
order to extend his health and dental insurance coverage under COBRA.
5. 1999 Bonus Payment. Excite@Home executives are eligible to receive a
bonus payment under the 1999 Executive Bonus Plan calculated based on
Excite@Home's performance against the 1999 bonus criteria (i.e. 40% company
revenue, 40% P&L, and 20% customer satisfaction). If and at the time the
Compensation Committee authorizes bonus payments under the 1999 Executive Bonus
Plan, Hutchison will receive a bonus payment calculated in the same manner as
used for all other eligible executives.
6. Section 401(k) Plan. Hutchison will no longer be eligible to make
contributions to the Excite@Home Retirement Savings and Investment Plan (the
'401(k) Plan') after the Step Down Date. On the Step Down Date, Hutchison's
contributions to the 401(k) Plan, if any, will be distributed to him or left in
the 401(k) Plan in accordance with his instructions and the provisions of 401(k)
(a) Original Stock Option Grant. On March 15, 1997, Hutchison
purchased 800,000 shares (on a split adjusted basis) of Excite@Home Series A
Common Stock (the 'Original Option Shares') at a purchase price of $0.125 per
share (on a split adjusted basis) by exercising a stock option that was granted
to Hutchison on March 3, 1997. The Original Option Shares will continue to vest
until the Step Down Date at their normal rate (i.e. 2.083% per month). In
addition, the parties agree that the vesting of an additional 116,667 Original
Option Shares was accelerated as of December 31,1999 pursuant to that certain
letter agreement between Excite@Home and Hutchison dated February 10, 1997
concerning vesting upon a 'change of control' (as defined therein). On the Step
Down Date, Excite@Home will exercise its right to repurchase all of Hutchison's
83,333 unvested Original Option Shares at $0.125 per share.
(b) Other Stock Option Grants. All other stock options granted to
Hutchison will continue to vest until the Step Down Date at their normal rate
(i.e. 2.083% per month). All vested and unexercised stock option shares not
exercised by Hutchison within ninety (90) days following the Step Down Date will
(c) Stock Purchase Plan. Hutchison will no longer be eligible to
participate in the Employee Stock Purchase Plan (the 'ESPP') following the
completion of the current purchase period on February 1, 2000.
8. Nonsolicitation and Proprietary Information.
(a) Nonsolicitation. Hutchison will remain bound by the Excite@Home
Invention Assignment and Confidentiality Agreement, including without limitation
nonsolicitation obligations contained therein. The parties acknowledge and
agree, however, that these nonsolictation obligations do not prevent Hutchison:
(i) from hiring an Excite@Home employee when the employee initiates hiring
discussions with Hutchison or Hutchison's new employer, or (ii) prevent
Hutchison from hiring any former Excite@Home employee so long as Hutchison does
not induce that person to leave Excite@Home or otherwise solicit the employment
of that person while that person is employed at Excite@Home.
(b) Excite@Home Property. Promptly following the Step Down Date,
Hutchison will return to Excite@Home all Excite@Home property now in his
possession (including, if applicable, his Excite@Home badge, portable computer,
portable phone and Excite@Home access cards/keys) unless Hutchison and
Excite@Home's Senior Vice President of Human Resources agree in writing that
Hutchison will retain or purchase specific equipment.
9. Hutchison Release. Hutchison forever fully releases and discharges
Excite@Home, its predecessors, successors, subsidiaries, officers, directors,
agents, attorneys, employees and assigns (collectively referred to hereafter as
'Releasees') from any and all causes of action, claims, suits, demands or other
obligations or liabilities (except those set forth in this Agreement), whether
known or unknown, that Hutchison ever had, now has, or may in the future have,
that may be alleged to arise out of or in connection with his employment with
Excite@Home and his separation therefrom (collectively referred to hereafter as
the 'Hutchison Claims'), including, but not limited to any claims: (a) for
wages, stock, bonuses or expense reimbursements, and (b) that any terms of his
employment with Excite@Home or any circumstances of his separation were
wrongful, in breach of any obligation of Excite@Home or in violation of any
contractual rights or any rights arising under any federal, state or local
statute (including, without limitation, the Age Discrimination in Employment Act
and the Older Worker Protection Act). Hutchison further agrees not to sue or
otherwise institute or cause to be instituted or in any way participate in
(except at the request of Excite@Home) legal or administrative proceedings
against the Releasees with respect to the Hutchison Claims.
10. Excite@Home Release. Excite@Home forever fully releases and
discharges Hutchison from any and all causes of action, claims, suits, demands
or other obligations or liabilities (except those set forth in this Agreement),
whether known or unknown, that Excite@Home ever had, now has, or may in the
future have, that may be alleged to arise out of or in connection with his
employment with Excite@Home or his separation therefrom other than those related
to his obligations under the Excite@Home Invention Assignment and
Confidentiality Agreement (collectively referred to hereafter as the
'Excite@Home Claims'). Excite@Home further agrees not to sue or otherwise
institute or cause to be instituted or in any way participate in legal or
administrative proceedings against Hutchison with respect to Excite@Home Claims.
11. Other Claims. This Agreement extends to all claims of every nature
and kind, known or unknown, suspected or unsuspected, past, present, or future,
arising from or attributable to Hutchison's employment with Excite@Home or the
termination of that employment, and any and all rights granted to Hutchison and
Excite@Home under Section 1542 of the California Civil Code or any analogous
state law or federal law or regulation are hereby expressly waived. Section 1542
of the Civil Code of the State of California 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 OF MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
12. Confidentiality. Both parties agree that they will not disclose the
terms of this Agreement to any other party except as required by law. This
covenant of non-disclosure is a material inducement to each party for entering
into this Agreement.
13. Arbitration. Both parties agree that any dispute between them
regarding any aspect of this Agreement or any of the terms or circumstances of
Hutchison's employment with Excite@Home or the termination of that employment
will be resolved pursuant to confidential arbitration proceedings to be held in
San Mateo County, California, in accordance with the rules of the American
Arbitration Association. The parties agree that the decision of the arbitrator
will be final and binding upon the parties.
14. No Admission of Liability. Nothing in this Agreement shall constitute
an admission by either party of any claim, liability, wrongdoing, or violation
of the law, all of which are denied by both parties.
15. Authorization. The parties agree that they have read and understand
the foregoing Agreement, and that they affix their signatures hereto voluntarily
and without coercion. Hutchison further acknowledges that he has been given an
opportunity to consult with an attorney of his own choosing concerning the terms
of this Agreement, and that the waivers he has made and the terms he has agreed
to are knowingly made, conscious, and with full appreciation that he is forever
foreclosed from pursuing any of the rights so waived.
16. Review Period. Hutchison has been advised (and acknowledges such
advice) that he may take up to twenty-one (21) days to consider this Agreement
after the date it was delivered to him, that he should consult with an attorney
prior to executing this Agreement, that he may revoke this Agreement within
seven (7) days of execution and that this Agreement shall not be effective or
enforceable until the end of such seven (7) day revocation period. In order to
revoke this Agreement, Hutchison must deliver to the General Counsel of
Excite@Home a letter stating that he is revoking this Agreement.
17. Miscellaneous. This Agreement will bind the parties and their
respective legal representatives, successors and assigns. This Agreement will
be governed by the laws of California. This Agreement may not be modified
without the written consent of both parties. This Agreement contains the entire
agreement and understanding between the parties with respect to this matter and
supersedes all prior discussions, agreements, and understandings except as
expressly provided herein. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties duly execute this Agreement as of the date first
AT HOME CORPORATION
By: /s/ Leilani Gayles /s/ Don Hutchison
Leilani Gayles DON HUTCHISON
Senior Vice President, Human Resources