Exhibit 10.1


 


SEPARATION AGREEMENT AND GENERAL RELEASE


 


Steven M. Besbeck, for himself and his heirs,
successors and assigns (hereinafter collectively referred to as “Besbeck”) and
Aspyra, Inc. on behalf of itself and for the benefit of its predecessors,
including specifically, but not limited to, Creative Computer Applications, Inc.,
its subsidiaries and otherwise related entities, past and present officers,
directors, shareholders, executives, managers, supervisors, employees,
successors and agents, hereby agree to the following:


 


1.             Besbeck
has resigned his employment with the Company effective November 30, 2007
(the “Resignation Date”).


 


2.             On the
Resignation Date Besbeck was paid his base salary and all earned but unused
vacation accrued through the Resignation Date.


 


3.             Besbeck
represents to Aspyra that he is signing this Separation Agreement and General
Release voluntarily and with a full understanding of and agreement with its
terms for the purpose of receiving additional pay, benefits, and consideration
from Aspyra beyond that which is owed to him.


 


4.             In
reliance on Besbeck’s promises, representations, and releases in this
Agreement, commencing no sooner than eight days after Aspyra’s receipt of this
Separation Agreement and General Release signed without change by Besbeck, and
in consideration therefor, Aspyra will:


 


(a)           Provide
Besbeck payment of one year of base salary at the base salary rate in effect on
the Resignation Date, to be made in equal monthly installments on regular
monthly payroll dates, commencing on the date closest to December 15,
2007, but no sooner than eight days after Aspyra’s receipt of this Agreement
signed by Besbeck, for a period of eighteen months (39 bi-weekly pay periods)
after the Resignation Date (i.e. he will be paid 2/3’s of his monthly base
salary for those eighteen months which will equal one year of base
salary).  Such payments shall be less
legally required withholdings.


 


(b)           In the
event that any of the payments reflected in paragraph 4(a) is missed,
Besbeck will provide Aspyra with three days written notice to cure.  On the fourth day without payment or cure of
said individual installment, the entirety of the remaining debt will accelerate
and become due and payable immediately, bearing interest at 10% annually.


 


(c)           Upon
Besbeck’s timely election of continuation coverage under COBRA, Aspyra will pay
the monthly COBRA premium for Besbeck (plus the two percent (2%) COBRA service
fee) for an eighteen month period, however, such payment of COBRA premiums
shall cease upon commencement of other employment of Besbeck which makes health
insurance coverage available to him.


 


COBRA notice will be
provided to Besbeck under separate cover immediately after the date he signs
this Agreement.


 


(d)           The provisions of 4(a) through (c) shall be
binding on any successors in interest of Aspyra.


 

















 


(e)           Accelerate
to the Resignation Date the vesting of all options unvested as of that date
(i.e. 35,000 shares) under Aspyra’s 2005 Equity Incentive Plan (“Equity Plan”).  With such additional vesting, Besbeck will
have a total of 70,000 shares vested under the Equity Plan
(50,000 shares under the 2005 Plan, and an existing 20,000 shares
under the 1997 Plan).  As per the terms
of the Equity Plan, Besbeck will have 90 days following the Resignation
Date to exercise those options and, if he does not do so, they will terminate
at that time.


 


(f)            Aspyra
covenants that, upon Besbeck’s written request and receipt of evidence
reasonably satisfactory to Aspyra that Besbeck has complied with Rule 144
and other applicable rules, regulations, or policies, including any trading
window or insider trading policy of Aspyra then in effect, Aspyra shall
promptly issue such instructions and take such other actions reasonably
necessary to cause any restrictive legends to be removed from shares of Aspyra
capital stock held by Besbeck.


 


5.             Besbeck
and Aspyra agree to waive and release all claims, known and unknown, which
either may have against the other, including specifically but not limited to on
behalf of and against Creative Computer Applications, Inc., its
subsidiaries and related entities, the past and present officers, directors,
shareholders, executives, managers, supervisors, employees, consultants,
auditors, attorneys, insurers, indemnities, successors and agents, of Aspyra
and the other aforementioned entities (hereinafter collectively referred to as “Aspyra
Released Parties”), arising prior to the date the parties execute this
Agreement.  This release includes,
without limitation, all claims relating in any way to any aspect of Besbeck’s
employment or job performance, compensation, or the cessation of his employment
with Aspyra, the Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, 42
U.S.C. section 1981, the California Fair Employment and Housing Act, California
Government Code section 12900, et  seq., the Unruh Civil Rights
Act, California Civil Code Section 51, all provisions of the California
Labor Code; the Employee Retirement Income Security Act, 29 U.S.C. section
1001, et  seq., all as amended; any other federal, state or local
law, regulation or ordinance or public policy, contract, tort or property law
theory, or any other cause of action or claim whatsoever that arose on or
before the date the parties execute this Agreement.


 


6.             It is
further understood and agreed that as a condition of this Agreement, all rights
under Section 1542 of the Civil Code of the State of California are
expressly waived by the parties against the other.  Such Section reads as follows:


 


“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her
settlement with the debtor.”


 


Notwithstanding
Section 1542, and for the purpose of implementing a full and complete
release and discharge of the parties, each expressly acknowledges that this
Separation Agreement and General Release is intended to include and does
include in its effect, without limitation, all claims which either party does
not know or suspect to exist in his or its favor against the other at the time
of execution hereof, and that this Agreement expressly contemplates the extinguishment
of all such claims.


 

















 


7.             Specifically
excluded from the waiver and release by Besbeck are his rights under his
Indemnification Agreement effective January 30, 2006, and his statutory
rights under California Labor Code § 2802. 
The terms of the Indemnification Agreement will continue in full force
and effect according to its terms, for claims against Besbeck arising out of
his employment by Aspyra, or its predecessors, and the parties agree that said
terms are incorporated by reference into this Agreement as if set forth in full
herein.


 


8.             The
release in this Agreement includes, but is not limited to, claims arising under
federal, state or local law for age, race, sex or other forms of employment
discrimination and retaliation.  In
accordance with the Older Workers Benefit Protection Act, Besbeck hereby
knowingly and voluntarily waives and releases all rights and claims, known or
unknown, arising under the Age Discrimination in Employment Act of 1967, as
amended, which he might otherwise have had against Aspyra Released
Parties.  Besbeck acknowledges that
nothing herein is intended to waive any claim based on events or actions
occurring after this Agreement is entered. 
Besbeck is hereby advised that he should consult with an attorney before
signing this Agreement, that nothing in this Agreement is intended to waive any
claim based on events or actions occurring after this Agreement is entered, and
that he has 21 days in which to consider and accept this Agreement by
signing and returning this Agreement to Aspyra’s Chief Financial Officer.  In addition, Besbeck has a period of seven
days following his execution of this Agreement in which he may revoke the
Agreement.  If Besbeck does not advise
Aspyra by a writing received by the Chief Financial Officer within such seven
day period of Besbeck’s intent to revoke the Agreement, the Agreement will
become effective and enforceable upon the expiration of the seven days.


 


9.             Unless
otherwise required by law, Besbeck agrees that he will keep this Agreement completely
confidential and will not disclose to any person other than his spouse, his tax
advisors, and his counsel, that (a) this Agreement exists, (b) the
amount of pay, benefits or other consideration he will receive from Aspyra
pursuant to this Agreement, or (c) any term or condition of this
Agreement.  Besbeck further agrees that
he will not disparage or talk negatively about Aspyra, its directors, or
employees to anyone, including specifically to any of Aspyra’s former,
existing, or prospective employees, clients/customers or competitors who are
known to Besbeck, and will cooperate with Aspyra in the formulation of an
appropriate press release announcing his departure from Aspyra.


 


10.           The terms
of the Confidentiality and Invention Assignment Agreement and Business
Associate Employee Confidentiality Agreement Besbeck executed in favor of
Creative Computer Applications, Inc. in 1996 and 2003 respectively, will
continue in full force and effect according to their terms.  Besbeck also agrees that those Agreements
will be equally binding on him as to Aspyra, and further to that intention
agrees that they are incorporated by reference into this Agreement as if set
forth in full herein.  Besbeck further
agrees to sign and return to Aspyra the Termination Certificate attached as Exhibit B
to the Confidentiality and Invention Assignment Agreement.


 


11.           This
Separation Agreement and General Release shall not be construed as an admission
by Aspyra of any improper, wrongful, or unlawful actions, or any other wrongdoing
against Besbeck, and Aspyra specifically disclaims any liability to or wrongful
acts against Besbeck on the part of itself and Released Parties.


 


12.           No
provision of this Agreement shall be construed against any party or his/its
counsel because that party or his/its counsel drafted the provision in
question.  This Agreement will be
interpreted in accordance with the laws of the State of California.


 


13.           This
Agreement may be modified only by written agreement signed by both parties.


 

















 


14.           In the
event any provision of this Agreement is void or unenforceable, the remaining
provisions shall continue in full force and effect.


 


15.           This
Separation Agreement and General Release contains the entire agreement between
the parties regarding the subject matter hereof, and supersedes any and all
prior and contemporaneous oral and written agreements.


 


16.           Any
controversy or claim arising out of or relating to this Agreement shall be
settled by arbitration in Los Angeles, California in accordance with the Rules of
the American Arbitration Association, and judgment upon the award rendered by a
single arbitrator may be entered in any court having jurisdiction.  The costs of said arbitration exclusive of
the parties’ attorneys’ fees, will be borne by Aspyra.


 


17.           In the event
of any action for the breach of or to enforce the provisions of this Agreement,
the prevailing party shall be entitled to recover from the unsuccessful party
reasonable attorney’s fees, costs, disbursements and other expenses in such
amounts as may be awarded by a court of competent jurisdiction.


 


	
   

  	
   

  	
  Aspyra, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Steven M. Besbeck

  	
   

  	
  By:

  	
  /s/
  James R. Helms

  
	
  Steven
  M. Besbeck

  	
   

  	
   

  	
  James
  R. Helms

  
	
   

  	
   

  	
   

  	
  Chief
  Operations Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:
  December 19, 2007

  	
   

  	
       Dated:
  December 20, 2007