Exhibit 10.11
SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and entered
into by and between ROGUE WAVE SOFTWARE, INC. ("Rogue Wave") and XXXXXX X.
XXXXXX ("Xx. Xxxxxx") (collectively "parties") as of the Execution Date of this
Agreement defined in paragraph 24 below.
WHEREAS, effective as of December 6, 2000, Xx. Xxxxxx tendered his
resignation as Vice President, Worldwide Sales and any and all other positions
he may have held as an employee or officer of Rogue Wave and any of its
corporate affiliates, parents or subsidiaries;
WHEREAS, Xx. Xxxxxx tendered his resignation voluntarily and at his sole
election and discretion; and
WHEREAS, Rogue Wave has accepted the resignation tendered by Xx. Xxxxxx;
WHEREAS, the parties wish to make the separation amicable but conclusive on
the terms and conditions set forth herein; and
WHEREAS, Xx. Xxxxxx accepts the benefits of this Agreement with the
acknowledgment that by its terms he has been fully and satisfactorily
compensated.
II. COVENANTS
NOW THEREFORE, in consideration of the above set forth recitals which are
incorporated herein by reference and the mutual promises and covenants contained
in this Agreement, it is hereby agreed by and between the parties hereto as
follows:
1. Resignation. Xx. Xxxxxx has tendered and Rogue Wave has accepted Xx.
Xxxxxx'x resignation as Vice President, Worldwide Sales and any and all other
positions he may have held as an employee or officer of Rogue Wave and any of
its corporate affiliates, parents or subsidiaries, effective as of December 6,
2000 ("Separation Date").
2. Consideration. Although Rogue Wave has no policy or procedure
requiring payment of any severance benefits, Rogue Wave agrees to the following
as part of this Agreement:
a. Lump Sum Payment. Rogue Wave agrees to pay Xx. Xxxxxx
$192,500.00, less all legally required deductions and required withholdings
("Lump Sum Payment"). The Lump Sum Payment shall be made in a one-time, lump sum
payment within 14 days of the Execution Date of this Agreement. The Lump Sum
Payment shall be by check and delivered by mail, overnight delivery, or hand
delivery, at the sole option of Rogue Wave. The parties agree that 25% of the
Lump Sum Payment is made solely in consideration of Xx. Xxxxxx executing and not
revoking the ADEA Waiver and Release set forth in paragraph 12 below.
b. Insurance. Xx. Xxxxxx acknowledges that Rogue Wave has provided
him with a COBRA notification form setting forth his rights and responsibilities
with regard to COBRA
coverage. Should Xx. Xxxxxx timely elect to continue coverage pursuant to COBRA,
Rogue Wave agrees to pay Rogue Wave's insurance carrier on a monthly basis for a
period beginning January 1, 2001 and concluding June 30, 2001 ("COBRA Payment
Period") unless this obligation is terminated earlier as set forth in this
Agreement, for the COBRA premiums to be paid for Xx. Xxxxxx in order to maintain
health insurance coverage during the COBRA Payment Period that is substantially
equivalent to that which Xx. Xxxxxx received immediately prior to the Separation
Date. Should Xx. Xxxxxx obtain employment during the COBRA Payment Period, Rogue
Wave's obligation under this paragraph shall forever cease upon the expiration
of the waiting period (if any) for entitlement to insurance coverage through Xx.
Xxxxxx'x new employer, Xx. Xxxxxx agrees to notify Rogue Wave in writing in the
event hat Xx. Xxxxxx obtains employment. In any event, and notwithstanding any
provision to the contrary on this paragraph, Rogue Wave's obligations under this
paragraph shall forever cease no later than by the end of the COBRA Payment
Period.
c. Stock Option Acceleration. Pursuant to Rogue Wave's 1996 Equity
Incentive Plan (the "Plan"), vesting of the stock options granted to Xx. Xxxxxx
(the "Option") will continue to vest for a period of six months following the
Separation Date. Pursuant to the terms of Xx. Xxxxxx'x offer letter and in
consideration of the covenants and releases set forth in this Agreement, vesting
of the Option shall accelerate such that six-forty-eighths (6/48ths) of the
shares under the option shall vest and become exercisable six months after the
Separation Date. Except for the acceleration set forth in the preceding
sentence, all other terms of the Incentive Stock Option Agreement and the Plan
shall govern the Option. Rogue Wave makes no representation as to the tax
consequences to Xx. Xxxxxx, if any, associated with the acceleration of a
portion of the shares under the Option.
3. Other Compensation. Except as expressly provided herein, Xx. Xxxxxx
acknowledges and agrees that Xx. Xxxxxx will not receive (nor is Xx. Xxxxxx
entitled to receive) any additional consideration, compensation, payments,
bonuses, commissions, reimbursements, incentive payments, stock, equity
interests, stock options, or benefits of any kind. Xx. Xxxxxx further
acknowledges and agrees that on or before the Separation Date, Rogue Wave paid
to Xx. Xxxxxx in full any and all wages, salary, accrued but unused vacation,
floating holiday accrued but not taken, personal time off, commissions, bonuses,
stock options, incentive payments and compensation due and owing, if any, as of
the Separation Date.
4. Denial of Liability. The parties acknowledge that any payment by
Rogue Wave and any release by Xx. Xxxxxx pursuant to this Agreement are made to
ensure that the separation is amicable, that in making any such payment or
release, Rogue Wave and Xx. Xxxxxx in no way admit any liability to each other
and that they expressly deny any such liability.
5. Nondisparagement. Xx. Xxxxxx and Rogue Wave agree that neither party
will at any time disparage the other to third parties in any manner likely to be
harmful to the other party, their business reputation, or the personal or
business reputation of its directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process.
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6. Rogue Wave Property. Prior to the Separation Date, Xx. Xxxxxx agrees
to return to Rogue Wave all Rogue Wave documents in whatever form (and all
copies thereof) and any and all other Rogue Wave property in Xx. Xxxxxx'x
possession, custody or control, including, but not limited to, financial
information, customer information, customer lists, employee lists, Rogue Wave
files, notes, contracts, contracts, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded information,
software, tangible property, including any computer equipment, cellular
telephones, pagers, credit cards, entry cards, identification badges and keys,
and any materials of any kind which contain or embody any proprietary or
confidential material of Rogue Wave (and all reproductions thereof in any form
including electronic or paper).
7. Confidentiality/Non-Disclosure. Xx. Xxxxxx and Rogue Wave acknowledge
that confidentiality and nondisclosure are material considerations for the
parties entering into this Agreement. Xx. Xxxxxx acknowledges, represents, and
agrees that he has not and will not discuss the terms or provisions of the
Agreement with any current or former Rogue Wave employee. As such, the
provisions of this Agreement shall be held in strictest confidence by Xx. Xxxxxx
and Rogue Wave and shall not be publicized or disclosed in any manner
whatsoever, including but not limited to, the print or broadcast media, any
public network such as the Internet, any other outbound data program such as
computer generated mail, reports or faxes, or any source likely to result in
publication or computerized access. Notwithstanding the prohibitions in this
paragraph 8: (a) the parties may disclose this Agreement in confidence to their
respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (b) Rogue Wave may disclose this Agreement as necessary to fulfill
standard or legally required corporate reporting or disclosure requirements; (c)
Rogue Wave may disclose this Agreement upon request from any government entity;
and (d) the parties may disclose this Agreement insofar as such disclosure may
be necessary to enforce its terms or as otherwise required by law.
8. Business Expense Reimbursement. Rogue Wave agrees to reimburse Xx.
Xxxxxx for those reasonable business expenses he necessarily incurred in his
capacity as a Rogue Wave employee as of the Separation Date consistent with
Rogue Wave's policies in this regard. Xx. Xxxxxx acknowledges and agrees that
Rogue Wave will not reimburse him for any expenses he incurred after the
Separation Date. Xx. Xxxxxx must submit the necessary documentation establishing
the amount, date and reason for expenses he incurred and for which he seeks
reimbursement no later than 15 days after the Separation Date.
9. References. To coordinate Rogue Wave's response to any inquiries from
prospective employers seeking employment references concerning Xx. Xxxxxx, Xx.
Xxxxxx agrees to direct such prospective employers exclusively to the Rogue Wave
Director of Human Resources. Should the Director of Human Resources receive an
inquiry, the Director (or an authorized agent acting on behalf of the Director)
shall confirm Xx. Xxxxxx'x period of employment with Rogue Wave, the position he
held, and the latest salary that he received as an employee.
10. Nondisclosure of Proprietary Information and Non-competition
Agreement. Xx. Xxxxxx agrees and acknowledges that he continues to be bound by
the terms of the Employee Proprietary Information and Inventions Agreement
between Xx. Xxxxxx and Rogue
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Wave, executed by Xx. Xxxxxx on May 2, 2000, a copy of which is attached hereto
as Exhibit A and which is incorporated herein as if set forth in full. Xx.
Xxxxxx specifically acknowledges that he remains bound by the covenant not to
compete with Rogue Wave contained in section 4 of the Employee Proprietary
Information and Inventions Agreement. Nothing in this paragraph should be
construed to narrow the obligations of Xx. Xxxxxx imposed by any other
agreement, law or other source.
11. Release of Claims by Xx. Xxxxxx. For the consideration set forth in
this Agreement and the mutual covenants of Rogue Wave and Xx. Xxxxxx, Xx. Xxxxxx
hereby releases, acquits and forever discharges Rogue Wave, its affiliated
corporations and entities, its and their officers, directors, agents,
representatives, servants, attorneys, employees, shareholders, successors and
assigns of and from any and all claims, liabilities, demands, causes of action,
costs, expenses, attorneys' fees, damages, indemnities and obligations of every
kind and nature, in law, equity, or otherwise, known or unknown, suspected and
unsuspected, disclosed and undisclosed, liquidated or contingent, arising out of
or in any way related to agreements, events, acts or conduct at any time prior
to and including the Execution Date, including but not limited to: any and all
such claims and demands directly or indirectly arising out of or in any way
connected with Xx. Xxxxxx'x employment with Rogue Wave or the conclusion of that
employment; claims or demands related to salary, bonuses, commissions, incentive
payments, stock, stock options, or any ownership or equity interests in Rogue
Wave, vacation pay, personal time off, fringe benefits, expense reimbursements,
sabbatical benefits, severance benefits, or any other form of compensation;
claims arising out of the administration or terms of Rogue Wave's Sales
Compensation Plan; claims pursuant to any federal, any state or any local law,
statute, common law or cause of action including, but not limited to, the
Federal Civil Rights Act of 1964, as amended; attorney's fees, court costs, or
any expenses under Title VII of the Federal Civil Rights Act of 1964, as
amended, or any other statute, agreement or source of law; the Federal Americans
with Disabilities Act of 1990; the Family and Medical Leave Act; the Employee
Retirement Income Security Act; the Colorado Discrimination and Unfair
Employment Act; the Equal Pay Act of 1963, as amended; the Fair Labor Standard
Act, as amended; tort law; contract law; wrongful discharge; discrimination;
harassment; fraud; misrepresentation; defamation; libel; emotional distress; and
breach of the implied covenant of good faith and fair dealing. Xx. Xxxxxx agrees
that in the event he brings a claim or charge covered by this release, or does
not dismiss with prejudice and withdraw any claim covered by this release, in
which he seeks damages against Rogue Wave or in the event he seeks to recover
against Rogue Wave in any claim brought by a governmental agency on his behalf,
this Agreement shall serve as a complete defense to such claims or charges.
12. ADEA Waiver and Release by Xx. Xxxxxx. Xx. Xxxxxx acknowledges that
Xx. Xxxxxx is knowingly and voluntarily waiving and releasing any rights Xx.
Xxxxxx may have under the federal Age Discrimination in Employment Act of 1967,
as amended ("ADEA Waiver and Release"). Xx. Xxxxxx acknowledges that the
consideration given for this ADEA Waiver and Release, provided for in paragraph
2 above, is in addition to anything of value to which Xx. Xxxxxx was already
entitled. The parties agree and acknowledge that Xx. Xxxxxx has been advised by
this writing, as required by the ADEA that: (a) this ADEA Waiver and Release
does not apply to any claims under ADEA that may arise after the date that Xx.
Xxxxxx signs this Agreement; (b) Xx. Xxxxxx has the right to and is advised to
consult with an attorney prior to
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executing this Agreement; (c) Xx. Xxxxxx has forty-five days within which to
consider this ADEA Waiver and Release (although Xx. Xxxxxx may choose to
voluntarily execute this ADEA Waiver and Release earlier); (d) Xx. Xxxxxx has
seven days following the execution of this Agreement to revoke Xx. Xxxxxx'x ADEA
Waiver and Release by sending, via certified United States mail, written notice
of revocation to the attention of Rogue Wave, Attn. Director of Human Resources;
0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and (e) this Agreement will not be
effective until the date upon which the revocation period has expired, which
will be the eighth day after Xx. Xxxxxx signs this Agreement, provided that the
Company has also signed this Agreement by that date. The parties acknowledge and
agree that revocation by Xx. Xxxxxx of the ADEA Waiver and Release is not
effective to revoke Xx. Xxxxxx'x waiver or release of any other claims pursuant
to this Agreement. The parties further agree that revocation by Xx. Xxxxxx of
the ADEA Waiver and Release shall entitle Rogue Wave to recover any and all
payments made by Rogue Wave in consideration for Xx. Xxxxxx executing and not
revoking the ADEA Waiver and Release, as articulated in paragraph 2 and to
recover the costs, expenses and attorney's fees incurred in attempting to
recover such payments.
13. Tax Consequences. Xx. Xxxxxx expressly acknowledges that Rogue Wave
has not made, nor herein makes, any representation about the tax consequences of
any consideration provided by Rogue Wave to Xx. Xxxxxx pursuant to this
Agreement. Xx. Xxxxxx agrees to indemnify and hold Rogue Wave harmless for any
and all claims or penalties asserted against Rogue Wave for failure to pay taxes
due on any consideration provided by Rogue Wave pursuant to this Agreement.
14. Cooperation. Xx. Xxxxxx agrees to fully cooperate with Rogue Wave in
connection with any Rogue Wave defense, prosecution, or investigation by Rogue
Wave regarding any actual or potential litigation, administrative proceeding, or
other such procedures, in which Rogue Wave may be involved as a party or non-
party from time to time.
15. No Third Party Rights. The parties agree that by making this
Agreement they do not intend to confer any benefits privileges or rights to
others. The Agreement is strictly between the parties hereto, subject to the
terms of paragraph 19 below, and that it shall not be construed to vest in any
other the status of third-party beneficiary.
16. Voluntary and Knowingly. Xx. Xxxxxx acknowledges that, before
executing this Agreement, he has been advised and given the opportunity to
consult with counsel and has in fact sought and received advice from counsel of
his own choosing, and was fully advised of his rights under law. Xx. Xxxxxx
further acknowledges that he has reviewed this Agreement in its entirety,
understands it, and voluntarily executes it.
17. Duty to Effectuate. The parties agree to perform any lawful
additional acts, including the execution of additional agreements, as are
reasonably necessary to effectuate the purpose of this Agreement.
18. Entire Agreement. Except for those agreements expressly referenced
herein, this Agreement, including Exhibit A hereto, constitutes the complete,
final and exclusive embodiment of the entire agreement between Xx. Xxxxxx and
Rogue Wave with regard to the
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subject matter hereof. This Agreement is entered into without reliance on any
promise or representation, written or oral, other than those expressly contained
herein. It may not be modified except in a writing signed by Xx. Xxxxxx and a
duly authorized officer of Rogue Wave.
19. Successors and Assigns. This Agreement, including Exhibit A hereto,
shall bind the heirs, personal representatives, successors, assigns, executors
and administrators of each party, and insure to the benefit of each party, its
heirs, successors and assigns.
20. Applicable Law. The parties agree and intend that this Agreement be
construed and enforced in accordance with the laws of the State of Colorado.
21. Forum. This Agreement will be governed by and construed according to
the laws of the State of Colorado as such laws are applied to agreements entered
into and to be performed entirely within Colorado between Colorado residents.
Xx. Xxxxxx hereby expressly understands and consents that this Agreement is a
transaction of business in the State of Colorado and in the County of Boulder,
Colorado, and constitutes the minimum contacts necessary to make Xx. Xxxxxx
subject to the personal jurisdiction and venue of the federal courts located in
the State of Colorado, and the state courts located in the County of Boulder,
Colorado. Xx. Xxxxxx agrees and acknowledges that any controversy arising out of
or relating to this Agreement or the breach thereof, or any claim or action to
enforce this Agreement or portion thereof, or any controversy or claim requiring
interpretation of this Agreement must be brought in federal court within the
State of Colorado or a state court located in the County of Boulder, Colorado.
No such action may be brought in any forum outside the State of Colorado. Any
action brought in contravention of this paragraph by one party is subject to
dismissal at any time and at any stage of the proceedings by the other, and no
action taken by the other in defending, counter claiming or appealing shall be
construed as a waiver of this right to immediate dismissal. A party bringing an
action in contravention of this paragraph shall be liable to the other party for
the costs, expenses and attorney's fees incurred in successfully dismissing the
action or successfully transferring the action to the federal courts located in
the State of Colorado, or the state courts located in the County of Boulder,
Colorado.
22. Severable. If any provision of this Agreement is determined to be
invalid, void 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 so as to be rendered enforceable.
23. Enforce According To Terms. The parties intend this Agreement to be
enforced according to their terms.
24. Execution Date. This Agreement is effective on the later of the dates
that each party signed this Agreement ("Execution Date").
25. Counterparts. This Agreement may be executed in one or more
counterparts, any of which need not contain the signatures of more than one
party but all signed counterparts taken together will constitute one and the
same argument.
26. Section Headings. The section and paragraph headings contained in
this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
27. Expiration. Unless otherwise agreed to by Rogue Wave in writing
signed by an authorized Rogue Wave representative, this agreement must be
executed by Xx. Xxxxxx and delivered to Rogue Wave no later than January 4, 2000
to be effective or binding on Rogue Wave.
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
Xxxxxx X. Xxxxxx, an individual Rogue Wave Software, Inc.,
a Delaware corporation
/s/ Xxxxxx X. Xxxxxx
-------------------------------- By:_____________________________
Xxxxxx X. Xxxxxx
Its:____________________________
Date: December 20, 2000 Date:_____________________, 2000
Exhibit A: Employee Proprietary Information and Inventions Agreement
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