EXHIBIT 10(1)
August 31, 2001
PERSONAL & CONFIDENTIAL
Xxxxxx Xxxxxx
000 XX 0xx Xxxxxx
Xxxxxx Xxxxx, XX 00000
RE: SEPARATION AGREEMENT
Dear Xxx,
This letter agreement (the "Agreement") will confirm your separation from
SilverStream Software, Inc. (the "Company" or "SilverStream") effective
September 15, 2001 (the "Separation Date"). The terms of your separation from
the Company are set forth below and by signing this Agreement, you agree as
follows:
- In consideration for this Agreement and upon the signing of
this Agreement, its becoming effective, the return of all
Company property that may be in your possession (except your
laptop computer, which you may keep) and the transfer to the
Company of any critical information in your possession, the
Company shall pay to you a lump sum of One Hundred Ten
Thousand Dollars ($110,000) less taxes and other required and
regular payroll withholdings (the "Severance Payment"). This
money will be paid to you as follows: $55,000 8 days after we
receive the signed Agreement, and $55,000 on October 1, 2001.
- You acknowledge that the Severance Payment is in lieu of any
other money or benefits that otherwise would be due to you
from the Company.
- In exchange for the Severance Payment you agree to release
forever all the rights and claims, whether known or unknown,
for relief of any kind from the Company, its officers,
directors, employees, shareholders and agents, arising out of
your employment with the Company that you had, have or may
have up until the date this letter is signed by you. This
release includes, but is not limited to, a release and
discharge of all claims and rights under any state, federal or
other governmental law, statute, regulation, ordinance, common
law, or other legal restriction, and specifically includes any
claims arising from or related to any obligations, duties,
representations, promises, agreements, commitments or
responsibilities of the Company as described in that certain
letter dated November 12, 2000 from Xxxxxxx X. Xxxxx III to
you, as well as any claims arising under the federal Age
Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991,
the Civil Rights Act of 1866 and 1871, the Older Workers
Benefits Protection Act, the Americans with Disabilities Act,
the Consolidated Omnibus Budget Reconciliation Act of 1985,
the Family and Medical Leave Act, the Employee Retirement
Income and Security Act, Massachusetts General Law Chapter
151B, Massachusetts General Laws Chapter 93, Sections 102 and
103, Massachusetts General Laws Chapter 149, Sections 148 and
150, and any common law claims at law or in equity, including
but not limited to all claims for breach of contract,
detrimental reliance and promissory estoppel. This means that
you may not xxx the Company, its officers, directors,
employees, shareholders, and agents for any claims arising out
of your hiring by, relocation for, employment with or
termination from the Company. In addition, you agree not to
disclose any "Proprietary Information" as defined in the
attached employee agreement and, for a period of one year
following the Separation Date, you agree not to recruit,
solicit, hire or engage as an independent contractor, any
employee of the Company.
Xxxxxx Xxxxxx
August 31, 2001
Page 2
- You will be paid all of your salary and accrued vacation pay
through the Separation Date and you acknowledge that as of the
effectiveness of this Agreement you have received all of such
salary and vacation pay.
- You represent and warrant that you have returned to the
Company any and all documents, materials and information and
copies of same related to the business (present and otherwise)
of the Company and its affiliates and all other property of
the Company and its affiliates in your possession or control,
including but not limited to keys to Company premises, files
and other proprietary information, trade secrets, computers,
phones and any credit cards and telephone calling cards issued
to you through or by the Company or any of its affiliates and
excluding only the enclosed copy of this Agreement and copies
of any Company benefit plans in which you have been or
currently are a participant. Notwithstanding the forgoing, the
Company has agreed that you may keep your laptop computer.
- Your benefits under the Company's medical and dental plans
will terminate effective September 30, 2001. Your rights to
continue medical and/or dental benefits under the COBRA
statute will commence on October 1, 2001 and entitle you to
participate in the Company`s group health insurance plan under
the terms of this statute. Documents describing COBRA and
notifying you of your rights there under are attached. Should
you elect COBRA, the Company will pay the premiums through
December 31, 2001, after which time you are responsible for
such payments.
- Your benefits under the Company's life and long-term
disability insurance group plans will terminate on the
Separation Date and may be converted to individual polices in
accordance with the terms of such plans. Information regarding
the terms of their conversions is attached. Please note, for
LTD conversion there is a minimum of 12 months employment with
SilverStream eligibility requirement.
- If you are currently participating in the Employee Stock
Purchase Plan (ESPP), any cash in your account as of the
Separation Date will be refunded to you in your final pay.
- If you are enrolled in the SilverStream Software 401(k)
Retirement Plan, please complete and return the attached
401(k) Distribution form to indicate how you would like to
handle your 401(k) account. Please note, if the balance of
your 401(k) account is less than $5,000, our plan requires you
to take a lump sum distribution. In order to avoid a forced
distribution initiated by SilverStream, it is important you
complete the attached distribution form to insure proper
handling of your funds. If the balance exceeds $5,000, you may
elect to leave your 401(k) assets in the SilverStream Plan.
- You will cease vesting in your SilverStream stock options as
of the Separation Date. You will have up to 90 days following
the Separation Date in which to exercise any vested options.
After such 90-day period, your remaining options will be
cancelled. You agree that you will not take any action to
exercise such options after such 90-day period.
- You agree that you will not individually, nor will you direct,
cause or encourage, your agents, family members or other
representatives, or those acting on your behalf, to denigrate
or disparage the Company or its current or former directors,
shareholders, officers, or employees. Should you be determined
by a court of competent jurisdiction to have breached this
provision, you will be held liable for any and all damages
incurred that were occasioned by that breach including
attorneys' fees and costs incurred in enforcing this
provision.
- The existence of this Agreement and the terms hereof are to be
treated as confidential and you shall not disclose the
existence of this Agreement or the terms hereof without the
prior written consent of the Company except to your tax and
financial advisors in connection with their professional
services rendered to you.
Xxxxxx Xxxxxx
August 31, 2001
Page 3
- You acknowledge and reaffirm any and all continuing
obligations you have to SilverStream under your SilverStream
Standard Employee Agreement and agree that such agreement and
your obligations thereunder are not superseded by this
Agreement; provided, however, that SilverStream waives its
rights under Section 3(a) of your SilverStream Standard
Employee Agreement and agrees that such Section 3(a) shall
hereupon automatically terminate and be of no further force
and effect.
- You agree that this Agreement and the payment to you of
severance pay hereunder is not and is not intended to be an
admission of liability on the part of the Company and shall
not be construed as an admission by the Company of any
violation of its policies or procedures or any federal, state
or local law, regulation or rule.
- You agree that this Agreement shall take effect as an
instrument under seal and shall be governed by the laws of the
Commonwealth of Massachusetts. The provisions of this
Agreement are severable, and if for any reason any part hereof
shall be found to be unenforceable, the remaining provisions
shall be enforced in full.
- Except as expressly provided herein, this Agreement supersedes
any and all prior oral and/or written agreements, including
any agreements contained in the certain letter dated November
12, 2000 from Xxxxxxx X. Xxxxx III to you, and sets forth the
entire agreement between you and the Company with respect to
your separation from the Company.
The Company wants to be certain that you understand and agree with the terms and
conditions of this Agreement. Therefore, the Company encourages you to study the
Agreement carefully and to seek the advice of an attorney before signing it.
Your eligibility to receive the separation pay described herein is contingent
upon your signing this Agreement. By signing this Agreement you acknowledge that
you have been afforded sufficient time to understand the provisions and effects
of this Agreement and that your acceptance of the terms of this Agreement is
knowing, voluntary and without duress.
If you wish to accept the severance payment in accordance with the terms stated
in this Agreement, please return one signed copy of this letter to Xxxxx
XxXxxxxx in the Human Resources department by 5:00 p.m., September 21, 2001 (21
days from the date you receive the Agreement). You will have 7 days to revoke
your signature after signing the Agreement. If you intend to revoke your
signature, you should do so in writing addressed to me at the Company. This
Agreement will not become effective until the eighth day after you sign the
Agreement. The severance payment will be made in the first SilverStream payroll
to occur after the Agreement becomes effective and after you have returned all
Company property and transferred to the Company any critical information that
may be in your possession.
Sincerely,
/s/ Xxxxxxx X. Xxxxx III
Xxxxxxx X. Xxxxx III
Vice President, Human Resources
Accepted and Agreed: /s/ Xxxxxx X. Xxxxxx Date: August 31, 2001
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Xxxxxx X. Xxxxxx
