Exhibit (e)(9)
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 XX. XXXXXX XXXXX
(collectively "parties") as of the Execution Date of this Agreement defined in
paragraph 25 below. This agreement shall become effective if Xx. Xxxxx'x
employment is terminated for any reason other than for cause within one year of
a change of control. For the purposes of this agreement "Change of Control"
means the occurrence of any of the following events:
Any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company's
then outstanding voting securities;
A change in the composition of the Board occurring within a twelve-month
period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors who
either (A) are directors of the Company as of the date hereof, or (B)
are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but shall not include an
individual whose election or nomination is in connection with an actual
or threatened proxy contest relating to the election of directors to the
Company);
The consummation of a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation that would
result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity or
such surviving entity's parent) at least fifty percent (50%) of the
total voting power represented by the voting securities of the Company
or such surviving entity or such surviving entity's parent outstanding
immediately after such merger or consolidation;
The consummation of the sale or disposition by the Company of all, or
seventy-five percent (75%) or more of the Company's assets.
I. RECITALS
WHEREAS, effective as of [DATE OF SEPARATION], Xx. Xxxxx'x employment
with Rogue Wave as Vice President, North American Sales, and any and all other
positions he may have held with Rogue Wave shall cease; and
WHEREAS, the parties wish to make the separation amicable but
conclusive on the terms and conditions set forth herein; and
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WHEREAS, Xx. Xxxxx accepts the benefits of this Separation and Release
Agreement with the acknowledgment that by its terms he has been fully and
satisfactorily compensated.
II. COVENANTS
THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, it is hereby agreed by and between the parties
hereto as follows:
1. SEPARATION. Xx. Xxxxx'x employment with Rogue Wave as Vice
President, North American Sales, and any and all other positions he may have
held with Rogue Wave, shall cease effective as of [Separation Date]("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. Xx. Xxxxx acknowledges and agrees that Xx. Xxxxx is
solely responsible to inform Rogue Wave in writing of Xx. Xxxxx'x new address
should Xx. Xxxxx change his residence and that failure to do so may result in
Xx. Xxxxx not receiving benefits under this Agreement.
(A) PAYMENT. Rogue Wave agrees to pay Xx. Xxxxx thirty-nine
weeks of regular salary (base salary only) calculated at the same rate of
regular salary most recently applicable to Xx. Xxxxx immediately prior to the
Separation Date, less all legally required deductions and withholdings
("Payment"). The Payment shall be made in a lump sum, payable within 14 days of
the Execution Date of this Agreement. The Payment shall be by check and
delivered by mail, overnight delivery, or hand delivery, at the sole option of
Rogue Wave.
(B) INSURANCE. To the extent permitted by the federal COBRA
law, applicable state laws, and the insurance policies and rules applicable to
Rogue Wave, Mr., Gaunt will be eligible to continue his health insurance
benefits and, later, to convert to an individual policy. Xx. Xxxxx acknowledges
that Rogue Wave has provided him with a COBRA notification form setting forth
Xx. Xxxxx'x rights and responsibilities with regard to COBRA coverage. Should
Xx. Xxxxx timely elect to continue coverage pursuant to COBRA, Rogue Wave agrees
to pay on a monthly basis for a period of nine months ("COBRA Reimbursement
Period," unless this obligation is terminated earlier as set forth in this
Agreement, for the COBRA premiums Xx. Xxxxx pays in order to maintain health
insurance coverage during the COBRA Reimbursement Period that is substantially
equivalent to that which Xx. Xxxxx received immediately prior to the Separation
Date. Should Xx. Xxxxx obtain employment during the COBRA Reimbursement 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. Xxxxx'x new employer. Xx. Xxxxx agrees to notify Rogue Wave in
writing in the event that Xx. Xxxxx 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 Reimbursement Period.
(C) OTHER COMPENSATION. Except as expressly provided herein,
Xx. Xxxxx acknowledges and agrees that Xx. Xxxxx will not receive (nor is Xx.
Xxxxx entitled to receive) any additional consideration, payments,
reimbursements, incentive payments, stock, equity
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interests or benefits of any kind. Xx. Xxxxx further acknowledges and agrees
that on or before the Separation Date Rogue Wave paid to Xx. Xxxxx in full any
and all wages, salary, accrued but unused vacation, floating holiday accrued but
not taken, personal time off, bonuses, stock options, incentive payments and
compensation due and owing, if any, as of the Separation Date.
3. INSURANCE. To the extent permitted by the federal COBRA law and the
insurance policies and rules applicable to Rogue Wave, Xx. Xxxxx will be
eligible to continue his health insurance benefits at his own expense and,
later, to convert to an individual policy. Xx. Xxxxx acknowledges that Rogue
Wave has provided him with a COBRA information form setting forth Xx. Xxxxx'x
rights and responsibilities with regard to COBRA coverage.
4. DENIAL OF LIABILITY. The parties acknowledge that any payment by
Rogue Wave and any release by Xx. Xxxxx 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. Xxxxx in no way admit any liability to each other
and that they expressly deny any such liability.
5. NONDISPARAGEMENT. Xx. Xxxxx 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.
6. ROGUE WAVE PROPERTY. Prior to the Separation Date, Xx. Xxxxx agrees
to return to Rogue Wave all Rogue Wave documents (and all copies thereof) and
any and all other Rogue Wave property in Xx. Xxxxx'x possession, custody or
control, including, but not limited to, financial information, customer
information, customer lists, employee lists, Rogue Wave files, cellular
telephones, contracts, drawings, records, business plans and forecasts,
financial information, specifications, computer-recorded information, software,
tangible property, 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).
7. CONFIDENTIALITY. The provisions of this Agreement shall be held in
strictest confidence by Xx. Xxxxx and Rogue Wave and shall not be publicized or
disclosed in any manner whatsoever. Notwithstanding the prohibition in the
preceding sentence: (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.
Xxxxx 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. Xxxxx acknowledges and agrees that
Rogue Wave will not reimburse him for any expenses
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he incurred after the Separation Date. Xx. Xxxxx must submit the necessary
documentation establishing the amount, date and reason for expenses she incurred
and for which he seeks reimbursement no later than 15 days after the Execution
Date of this Agreement.
(A) REFERENCES. To coordinate Rogue Wave's response to any
inquiries from prospective employers seeking employment references concerning
Xx. Xxxxx, Xx. Xxxxx agrees to direct such prospective employers exclusively to
Human Resources for Rogue Wave. Should Human Resources receive an inquiry, Human
Resources shall confirm Xx. Xxxxx'x period of employment with Rogue Wave, the
position he held, and the latest salary that he received as an employee
9. NONDISCLOSURE OF PROPRIETARY INFORMATION. Xx. Xxxxx agrees and
acknowledges that he continues to be bound by the terms of the Proprietary
Information and Inventions Agreement between Xx. Xxxxx and Rogue Wave, executed
by Xx. Xxxxx on September 16, 2003, a copy of which is attached hereto as
Exhibit A and which is incorporated herein as if set forth in full. Nothing in
this paragraph should be construed to narrow the obligations of Xx. Xxxxx
imposed by any other agreement, law or other source.
10. RELEASE OF CLAIMS BY XX. XXXXX. For the consideration set forth in
this Agreement and the mutual covenants of Rogue Wave and Xx. Xxxxx, Xx. Xxxxx
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. Xxxxx'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 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 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, 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.
11. TAX CONSEQUENCES. Xx. Xxxxx 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. Xxxxx pursuant to this
Agreement.
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12. VOLUNTARY AND KNOWINGLY. Xx. Xxxxx acknowledges that in executing
this Agreement, Xx. Xxxxx has reviewed it and understands its terms and has had
an opportunity and was advised to seek guidance from counsel of Xx. Xxxxx'x own
choosing, and was fully advised of Xx. Xxxxx'x rights under law, and acted
knowingly and voluntarily.
13. 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.
14. ENTIRE AGREEMENT. Except for those agreements expressly referenced
herein, this Agreement, including all Exhibits hereto, constitutes the complete,
final and exclusive embodiment of the entire agreement between Xx. Xxxxx and
Rogue Wave with regard to the 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. Xxxxx and a duly authorized officer of Rogue Wave.
15. SUCCESSORS AND ASSIGNS. This Agreement, including all Exhibits
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.
16. APPLICABLE LAW. The parties agree and intend that this Agreement be
construed and enforced in accordance with the laws of the State of Colorado.
17. FORUM. 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 a forum located within the State of 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 answering, defending, counter claiming, appealing
or otherwise 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 a forum located within the State of Colorado.
18. 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.
19. ENFORCE ACCORDING TO TERMS. The parties intend this Agreement to be
enforced according to their terms.
20. EXECUTION DATE. This Agreement is effective on the later of the
dates that each party signed this Agreement ("Execution Date").
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21. SECTION HEADINGS. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
22. EXPIRATION. Unless otherwise agreed to by Rogue Wave in writing
signed by an authorized Rogue Wave representative, this agreement must be
executed by Xx. Xxxxx and delivered to Rogue Wave no later than [date (45 days
after separation date] 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:
XX. XXXXXX XXXXX ROGUE WAVE SOFTWARE, INC.,
An individual a corporation
/s/ Xxxxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxx Xxxxx Xxxxxxxx X. Xxxxx
Its: President and Chief
Executive Officer
Date: September 17, 2003 Date: September 17, 2003
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