EXHIBIT 10.3
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made and
entered into this 30th day of September, 2003, by and between Xxxxx Xxxxxxxx
("Xxxxxxxx") and Corillian Corporation (the "Company") (collectively referred to
as the "Parties"), and is made and entered into with reference to the following
facts.
RECITALS
WHEREAS, the Parties have mutually decided that Xxxxxxxx'x full-time
employment relationship with the Company will terminate effective November 15,
2003 but that Xxxxxxxx will remain employed with the Company on a temporary,
part-time basis until May 14, 2003; and
WHEREAS, the Parties each desire to resolve any disputes which exist or
may exist arising out of Xxxxxxxx'x full-time employment with the Company and/or
the termination thereof.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained below, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree that
Xxxxxxxx'x separation from the Company shall be on the following terms and
conditions:
1. Last Day Of Full-Time Employment. The parties agree that
Xxxxxxxx'x last day of full-time employment with the Company will be November
14, 2003 (the "Transition Date"). Xxxxxxxx will continue to perform the duties
of Chief Financial Officer through the Transition Date consistent with his legal
duties to the Company, its shareholders and Board of Directors. From the date of
execution of this Agreement through the Transition Date, Xxxxxxxx'x employment
may only be terminated for "Cause" as defined in the Company's Change of Control
Severance Agreement. Any accrued paid time off due to Xxxxxxxx will be paid to
Xxxxxxxx upon the Transition Date. In addition, the Company will return to
Xxxxxxxx any amounts on deposit in Xxxxxxxx'x Employee Stock Purchase Plan
account.
2. Consideration. On the eighth day after the revocation period
set forth in paragraph 4(c) has passed without revocation of this Agreement by
Xxxxxxxx, the parties agree to be bound as follows:
(a) Xxxxxxxx will serve as a temporary, part-time employee of the
Company in consideration of a monthly salary of $2,000 per month, less state and
federal tax withholdings, for a period of six months following the Transition
Date and ending on May 14, 2004 (the "Transition Period"), commencing on the
first pay period following the commencement of the Transition Period. In the
capacity of financial advisor, Xxxxxxxx shall act as a part-time employee and
will advise the Company's chief executive officer on financial and audit issues
confronting the Company and issues related to the recruitment and hiring of the
Company's chief financial officer. During the Transition Period, Xxxxxxxx will
not be expected to provide, on average, more than four hours of service per
month. Further, as a temporary, part-time employee during the Transition Period,
Xxxxxxxx shall not accrue any vacation pay and shall not be eligible to
participate in any employee benefit, group insurance or compensation plan, or
other program maintained by Corillian. However, the Company shall indemnify and
defend Xxxxxxxx in all acts undertaken in the course and scope of the Transition
Period. Xxxxxxxx'x temporary, part-time employment may only be terminated during
the Transition Period for "Cause" as defined in the Company's Change of Control
Severance Agreement.
(b) Xxxxxxxx will continue to vest in any stock options previously
granted to Xxxxxxxx until the expiration of the Transition Period, and the
vested portion of all such stock options would terminate 90
days after the end of the Transition Period. Any unvested stock options as of
the end of the Transition Period would terminate.
(c) If, prior to November 14, 2003, there is an announcement of a
Change of Control (as defined in Xxxxxxxx'x Change of Control Severance
Agreement), issuance of a Letter of Intent that later results in a Change of
Control, tender offer that later results in a Change of Control, or a Change of
Control: (1) Xxxxxxxx will be entitled to receive a lump sum payment equal to
the difference between the severance amount set forth in Section 5(a) and the
Severance Payment that would be due to Xxxxxxxx under the Change of Control
Severance Agreement if Xxxxxxxx'x employment was terminated under Section 3(a)
of the Change of Control Severance Agreement, (2) Xxxxxxxx'x stock options will
be subject to accelerated vesting as if Xxxxxxxx'x employment was terminated in
connection with a Change of Control, and (3) the Transition Period will
automatically terminate, and the Company will be relieved of any obligation to
pay any consulting fees under Section 2(a) or continue any benefits under
Section 5(b). Xxxxxxxx acknowledges that he will not be entitled to any
additional payments or benefits as a result of any Change of Control announced
or consummated after November 14, 2003, and that any provisions in any
agreements providing for any such payments or benefits will be of no force or
effect after November 14, 2003. Xxxxxxxx further agrees that the release set
forth in Section 3 covers any claim that Xxxxxxxx'x employment was terminated in
connection with a Change of Control, except as set forth in this Section.
(d) During the Transition Period, Xxxxxxxx will have access to an
email account at Corillian and be able to use his laptop, Blackberry device and
cell phone. After the Transition Period, Xxxxxxxx will be entitled to retain his
laptop, Blackberry device and cell phone so long as (i) he submits all such
hardware to Corillian at the end of the Transition Period for erasing of any
Corillian property, and (ii) Corillian cancels any subscription agreements or
licenses with respect to the devices and Xxxxxxxx assumes responsibility for
establishing the service relationships for the devices.
(e) Xxxxxxxx acknowledges and agrees that the payments and other
benefits provided for herein are considerations in addition to Xxxxxxxx'x wages
to which Xxxxxxxx would not otherwise be entitled. Xxxxxxxx further acknowledges
and agrees that the payments and other consideration described herein are not
required by the Company's policies or procedures or by any contractual
obligation of the Company, and are offered by the Company and accepted by
Xxxxxxxx solely as valid and sufficient consideration for this Agreement.
3. General Release of Claims. Xxxxxxxx hereby expressly waives,
releases, acquits and forever discharges the Company and its divisions,
subsidiaries, affiliates, parents, related entities, partners, officers,
directors, shareholders, investors, executives, managers, employees, agents,
attorneys, representatives, successors and assigns (hereinafter collectively
referred to as "Releasees"), from any and all claims, demands, and causes of
action which Xxxxxxxx has or claims to have, whether known or unknown, of
whatever nature, which exist or may exist on Xxxxxxxx'x behalf from the
beginning of time up to and including the date of this Agreement. As used in
this paragraph, "claims," "demands," and "causes of action" include, but are not
limited to, claims based on contract, whether express or implied, fraud,
defamation, wrongful termination, estoppel, equity, tort, retaliation,
intellectual property, personal injury, emotional distress, public policy, wage
and hour law, statute or common law, claims related to stock options and/or
fringe benefits, claims for attorneys' fees, vacation pay, debts, accounts,
compensatory damages, punitive or exemplary damages, liquidated damages, and any
and all claims arising under any federal, state, or local statute, law, or
ordinance prohibiting any kind of discrimination, including but not limited to,
the Oregon Revised Statutes, the Oregon Administrative Code, the federal Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964 as
amended, the Americans with Disabilities Act, the Family and Medical Leave Act
or the Employee Retirement Income Security Act. Notwithstanding the foregoing,
the parties agree that this release shall not apply to, and nothing contained in
this Agreement shall relieve Xxxxxxxx or the Company of, their respective
contractual rights or obligations under Xxxxxxxx'x existing stock option
agreements, except that any provisions regarding vesting or acceleration of
vesting are hereby modified to reflect Sections 2(b) of this Agreement; provided
further, that the parties agree that this release shall not apply to claims for
indemnification or defense arising out of acts relating to or which occurred in
the course and scope of Xxxxxxxx'x employment.
4. NOTICE TO EMPLOYEE. Xxxxxxxx agrees that he waives and
releases any rights that he may have under the Age Discrimination in Employment
Act of 1967 ("ADEA"), and he acknowledges that this waiver and release is
knowing and voluntary. Xxxxxxxx and the Company agree that this waiver and
release does not apply to any rights or claims that may arise under ADEA after
the effective date of this Agreement. Xxxxxxxx acknowledges that the
consideration given for this waiver and release is in addition to anything of
value to which Xxxxxxxx was already entitled. Xxxxxxxx further acknowledges that
he has been advised by this writing that (a) he may consult with an attorney
prior to executing this Agreement; (b) he has at least twenty-one (21) days
within which to consider this Agreement; (c) he has at least seven (7) days
following the execution of this Agreement by the parties to revoke this
Agreement; (d) this Agreement shall not be effective until the revocation period
has expired. To revoke this Agreement, Xxxxxxxx must deliver written
confirmation of revocation to the Company within the seven (7) day revocation
period.
5. General Release of Claims Upon Separation; Consideration
Therefor. If, on or upon Xxxxxxxx'x Transition Date, Xxxxxxxx executes a General
Release of Claims in a form materially similar to the general release of claims
provided for in this Agreement, Xxxxxxxx will be entitled to receive the
following payments and other consideration:
(a) Subject to the terms of this Agreement, Xxxxxxxx will be paid
$100,000, less state and federal tax withholdings, as severance, which will be
payable over a six-month period commencing on the first payroll period following
the Transition Date in accordance with the Company's normal payroll schedule;
and
(b) Subject to the terms of this Agreement, the Company will
continue, at its cost, medical/dental/vision insurance for Xxxxxxxx as allowed
under and subject to the conditions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") for six months from the Transition Date,
after which time Xxxxxxxx may elect to continue, at his cost, medical insurance
for the duration of any time allowed by COBRA.
6. Company Property/Proprietary Information. Xxxxxxxx agrees to
continue to abide by the terms of the Company's Proprietary Information
Intellectual Property and Non-Competition Agreement the terms of which are
incorporated herein by reference.
7. Non-Admission of Liability. The parties agree that this
Agreement is not and should not be construed as an admission or statement by
either party that it or any other party has acted wrongfully or unlawfully, and
both parties hereto expressly deny any wrongful or unlawful action.
8. Ownership of Claims. Xxxxxxxx represents and warrants that he
is the sole and lawful owner of all rights, title and interest in and to all
released matters, claims and demands referred to herein. Xxxxxxxx further
represents and warrants that there has been no assignment or other transfer of
any interest in any such matters, claims or demands which he may have against
the Releasees.
9. Governing Law and Dispute Resolution. This Agreement, in all
respects, shall be interpreted, enforced and governed by and under the laws of
the State of Oregon. Any and all actions relating to this Agreement shall be
filed and maintained in the federal and/or state courts located in the State of
Oregon, and the parties consent to the jurisdiction of such courts. In any
action arising out of this Agreement, or involving claims barred by this
Agreement, the prevailing party shall be entitled to recover all costs of suit,
including reasonable attorneys' fees. Any controversy, claim or dispute of any
type arising out of or relating to Employee's employment or the provisions of
this Agreement shall be resolved in accordance with this Section 9 regarding
resolution of disputes, which will be the sole and exclusive procedure for the
resolution of any disputes. This Agreement shall be enforced in accordance with
the Federal Arbitration Act, the enforcement provisions of which are
incorporated by this reference. Nothing in this provision is intended to
restrict Employee from submitting any matter to an administrative agency with
jurisdiction over such matter.
(a) Employer and Employee will make a good faith attempt
to resolve any and all claims and disputes by submitting them to mediation in
Portland, Oregon before resorting to arbitration or
any other dispute resolution procedure. The mediation of any claim or dispute
must be conducted in accordance with the then-current JAMS procedures for the
resolution of employment disputes by mediation, by a mediator who has had both
training and experience as a mediator of general employment and commercial
matters. If the parties to this Agreement cannot agree on a mediator, then the
mediator will be selected by JAMS in accordance with JAMS' strike list method.
Within thirty (30) days after the selection of the mediator, Employer and
Employee and their respective attorneys will meet with the mediator for one
mediation session of at least four hours. If the claim or dispute cannot be
settled during such mediation session or mutually agreed continuation of the
session, either Employer or Employee may give the mediator and the other party
to the claim or dispute written notice declaring the end of the mediation
process. All discussions connected with this mediation provision will be
confidential and treated as compromise and settlement discussions. Nothing
disclosed in such discussions, which is not independently discoverable, may be
used for any purpose in any later proceeding. The mediator's fees will be paid
in equal portions by Employer and Employee, unless Employer agrees to pay all
such fees.
(b) If any claim or dispute has not been resolved in
accordance with Section 9(a), then the claim or dispute will be determined by
arbitration in accordance with the then-current JAMS employment arbitration
rules and procedures, except as modified herein. The arbitration will be
conducted by a sole neutral arbitrator who has had both training and experience
as an arbitrator of general employment and commercial matters and who is and for
at least ten (10) years has been, a partner, a shareholder, or a member in a law
firm. If Employer and Employee cannot agree on an arbitrator, then the
arbitrator will be selected by JAMS in accordance with Rule 12 of the JAMS
employment arbitration rules and procedures. No person who has served as a
mediator under the mediation provision, however, may be selected as the
arbitrator for the same claim or dispute. Reasonable discovery will be permitted
and the arbitrator may decide any issue as to discovery. The arbitrator may
decide any issue as to whether or as to the extent to which any dispute is
subject to the dispute resolution provisions in Section 9 and the arbitrator may
award any relief permitted by law. The arbitrator must base the arbitration
award on the provisions of Section 9 and applicable law and must render the
award in writing, including an explanation of the reasons for the award.
Judgment upon the award may be entered by any court having jurisdiction of the
matter, and the decision of the arbitrator will be final and binding. The
statute of limitations applicable to the commencement of a lawsuit will apply to
the commencement of an arbitration under Section 9(b). The arbitrator's fees
will be paid in equal portions by Employer and Employee, unless Employer agrees
to pay all such fees.
10. Successors and Assigns. The Parties expressly understand and
agree that this Agreement, and all of its terms, shall be binding upon their
representatives, heirs, executors, administrators, successors and assigns.
11. Integration. Except as otherwise specifically provided for,
this Agreement constitutes an integrated, written contract, expressing the
entire agreement between the Parties with respect to the subject matter hereof.
In this regard, Xxxxxxxx represents and warrants that he is not relying on any
promises or representations that do not appear written herein. Xxxxxxxx further
understands and agrees that this Agreement can be amended or modified only by a
written agreement, signed by all of the Parties hereto.
12. Counterparts. This Agreement may be executed in separate
counterparts and by facsimile, and each such counterpart shall be deemed an
original with the same effect as if all Parties had signed the same document.
13. Headings. The headings in each paragraph herein are for
convenience of reference only and shall be of no legal effect in the
interpretation of the terms hereof.
14. Severability. If any provision in this Agreement is held to be
invalid, the remainder of this Agreement shall not be affected by such a
determination.
15. Voluntary Agreement. XXXXXXXX UNDERSTANDS AND AGREES THAT HE
MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND
REPRESENTS THAT HE HAS ENTERED INTO THIS AGREEMENT KNOWINGLY AND
VOLUNTARILY, WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS
TERMS.
CAUTION: READ CAREFULLY--THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the dates provided below.
XXXXX XXXXXXXX CORILLIAN CORPORATION
___________________________________ By:_________________________________
Dated: ___________, 2003 Dated: ___________, 2003
