Exhibit 10.1
CONFIDENTIAL SEPARATION AGREEMENT AND
GENERAL RELEASE OF CLAIMS
In exchange for the mutual promises contained herein, and other good and
valuable consideration, receipt of which is hereby acknowledged, Xxxx Xxxxxx
("Employee") and Corillian Corporation ("Employer") agree as follows:
1. Separation. Employee's employment with Employer will terminate
effective March 5, 2005. On or before the effective date of Employee's
termination, Employer shall pay Employee the gross amount of $26,294.92, less
required withholdings for federal, state and local taxes, which amount
represents all wages, compensation, or benefits (including, without limitation,
any bonus compensation and any accrued, but unused vacation) earned by Employee
through the effective date of his separation from employment.
2. Separation Consideration. Upon expiration without revocation of the
seven (7) day revocation period as provided in paragraph 4.2, Employee shall
receive Separation Consideration as follows:
(a) Employee will receive severance pay in the gross amount of $43,750.
This severance payment will be subject to required withholdings for
federal, state and local taxes.
(b) Employer will continue, at its cost, Employee's health insurance for
three months following the month in which Employee's separation from
employment becomes effective, after which time Employee may elect to
continue, at his cost, health insurance in accordance with and for
the duration of any time allowed by the health care continuation
coverage provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA").
This Separation Consideration shall be in addition to any wages, compensation,
or benefits (including, without limitation, any bonus compensation and any
accrued, but unused vacation) earned by Employee through the effective date of
his separation from employment. Employee agrees that all other wages,
compensation or benefits of any kind shall cease on the effective date of
Employee's termination from employment. Employee agrees that this Separation
Consideration is not required by Employer's policies or procedures or by any
contractual obligation of Employer, and is offered by Employer solely as
consideration for this Agreement.
3. General Release of Claims. Employee releases, acquits and forever
discharges Employer and its former and current subsidiary and affiliated
entities, directors, officers, managers, employees, shareholders, insurers,
attorneys, agents, partners, licensees, and representatives, and each of their
respective successors and assigns, both individually and in their corporate
capacities (collectively, "Released Parties") of and from any and all
liabilities, claims, demands, actions, causes of action, suits, controversies,
agreements, damages, or judgments, in law or in equity, whether known or
unknown, or suspected or unsuspected, that Employee now or hereafter has or may
have against the Released Parties (or any of them) for, upon, or by reason of
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE PAGE 1
any matter, thing, act or omission whatsoever, arising or occurring on or at any
time prior to (but not after) the date on which Employee executes this
Agreement. Employee agrees that this release is general and complete in nature,
and includes, but is not limited to, any claims arising out of Employee's
relationship with Employer and the termination thereof; any claims for wages,
compensation, or benefits (including, without limitation, any bonus compensation
and any accrued, but unused vacation); any claims for compensatory or exemplary
damages; any claims relating to or arising out of any express or implied
contract or covenant; any claims relating to or arising under any federal or
state statute (such as Title VII of the Civil Rights Act of 1964, the federal
Age Discrimination in Employment Act ("ADEA"), the Xxxxxxxx-Xxxxx Act of 2002,
and the Oregon Revised Statutes); and any claims arising at common law. Employee
intends that this general and complete release is binding and enforceable
notwithstanding the possibility that Employee may hereafter discover facts
which, if such facts had been known by Employee as of the execution of this
Agreement, may have materially affected his decision to enter into this
Agreement. Employee knowingly and intentionally hereby waives the benefit of any
state or federal statute, law, order, or rule that would provide to the
contrary.
4. ADEA Notice. This Agreement contains a full release of any claim under
the Age Discrimination in Employment Act (the "ADEA"), which means in part that
Employee is granted the following rights:
4.1. Period To Consider. Under the ADEA, Employee may take up to
twenty-one (21) days to consider and accept the terms of this Agreement.
Employee may accept in less time by signing and delivering the Agreement to
Corillian Corporation, ATTN: President, 0000 XX Xxxx Xxxxx Xxxxx Xxxxxxxxx, XX
00000. Employee is urged to use as many of the twenty-one (21) days as he deems
necessary to consider this Agreement and to consult with his attorney about it.
By signing this Agreement, Employee acknowledges the following:
(a) he has been given at least twenty-one (21) days to consider this
Agreement,
(b) this Agreement is written in a manner that Employee understands,
(c) the general release described in paragraph 3 is made knowingly
and voluntarily, without any duress or coercion and with the full intent of
releasing the Released Parties of and from any and all claims; and
(d) Employee has been advised by Employer to consult with his
attorney prior to signing this Agreement.
4.2. Revocation Period. Under the ADEA, Employee may revoke this
Agreement within seven (7) days of the date on which he first signed this
Agreement. If Employee revokes the Agreement, then the Agreement shall become
null and void, meaning Employee will not receive any Separation Consideration as
set forth in the Agreement. To be effective, Employee's revocation must be in
writing and returned by hand-delivery or by
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE PAGE 2
regular U.S. Mail postmarked to Corillian Corporation, ATTN: President, 0000 XX
Xxxx Xxxxx Xxxxx Xxxxxxxxx, XX 00000 within seven (7) days of the date on which
Employee first signed this Agreement.
5. Confidentiality and Nondisparagement. Employee agrees to hold the
provisions of this Agreement in strictest confidence and not to disclose the
provisions of this Agreement in any manner whatsoever, except that Employee may
disclose this Agreement in confidence to his immediate family, attorneys, tax
preparers, or otherwise as required by law. Employee agrees not to make any oral
or written statements to any person or entity which might tend to disparage the
business reputation of Employer or any of its customers, owners, employees,
officers or directors.
6. Company Property/Proprietary Information. Employee hereby reaffirms and
agrees to continue to abide by the terms of the Noncompete, Nondisclosure,
Conflict of Interest and Assignment of Improvements, Inventions and Discoveries
Agreement, previously entered into by the parties, the terms of which are
incorporated herein by reference.
7. 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 claims relating to or arising out of this Agreement shall
be resolved in accordance with the terms of the Mutual Agreement For Mediation
And Arbitration Of Claims previously entered into by the parties, the terms of
which are incorporated herein by reference.
8. Integration. Except as otherwise specifically provided for in this
Agreement, this Agreement sets forth the entire understanding between Employee
and Employer and supersedes any prior agreements or understandings (express or
implied) pertaining to the terms of his employment with Employer and the
termination of the employment relationship. Employee acknowledges that in
executing this Agreement he does not rely upon any oral or written
representation or statement by any representative of Employer concerning the
subject matter of this Agreement, except as expressly set forth in the text of
this Agreement. This Agreement may not be modified or amended except by written
agreement between Employee and Employer.
9. Attorneys' Fees. If Employee or Employer files an action in any court
or other forum to enforce compliance with any term of this Agreement or to
allege a breach thereof, the party prevailing in that action shall be entitled
to recover all attorneys' fees, costs and any necessary disbursements incurred
therein, including, without limitation, expert witness fees, deposition costs,
court clerk fees, service fees, and printing costs, in addition to any other
relief to which the party may be entitled at trial or upon appeal.
10. No Admissions. It is understood and agreed that this Agreement is
offered to Employee solely to facilitate his or her departure from employment
with Employer. It is further understood and agreed that neither this Agreement,
nor the release granted hereunder, is an admission of any wrongdoing or
liability on the part of Employee or Employer, by whom liability has been and is
expressly denied.
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE PAGE 3
11. Voluntary Agreement. EMPLOYEE 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates indicated below.
CAUTION: READ CAREFULLY -- THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS AND A WAIVER OF ANY RIGHT TO A JURY TRIAL.
CORILLIAN CORPORATION
By:
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XXXX XXXXXX Its
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Dated: Dated:
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CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE PAGE 4
