SEPARATION AGREEMENT, WAIVER AND RELEASE
SEPARATION
AGREEMENT, WAIVER AND RELEASE
Convera
Technologies, including its officers, directors, stockholders, employees,
agents, representatives, parent Convera Corporation, subsidiaries, affiliates,
divisions, successors and assigns (collectively referred to as “Convera”) and
Xxxx X. Xxxxxxx (“Employee”) hereby make and voluntarily enter into this
Separation Agreement, Waiver and Release (the “Agreement”).
| 1. |
Employee’s
employment with Convera will terminate without cause, as defined in
Section 7 of his April 1, 2004 offer letter from Convera, (the
“Offer Letter”) on July 28, 2006 (the “Notice Date”). On the Notice
Date, Employee will resign from all positions he holds with
Convera.
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| 2. |
Pursuant
to Section 7 of the Offer Letter, in consideration for the Employee
executing the Convera standard form of release and covenants not to
compete or solicit employees or customers, set forth in Sections 7,
11 and 13 below, Convera shall within one (1) business day of expiration
of the Revocation Period set forth in
Section 19:
|
| (a) |
pay
Employee unpaid Base Salary, if any, and accrued but unused vacation
time,
if any, due and owing as of the Notice Date, in accordance with Convera’s
standard policies and practices, less normal payroll deductions, including
deduction of any federal, state or local taxes that Convera may be
required to collect or withhold (“Withholding
Adjustments”);
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| (b) |
make
a severance payment (“the Separation Allowance”) to Employee in an amount
equal to 12 months of his $250,000 annual base salary. The Separation
Allowance will be paid in a “lump sum” subject to Withholding
Adjustments;
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| (c) |
make
a bonus payment to Employee in an amount equal to $37,500 in full
satisfaction of any bonus to which Employee is entitled for his
performance with Convera; and
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| (d) |
reimburse
Employee for any outstanding, reasonable and authorized out-of-pocket
business expenses incurred through the Notice Date by Employee on
Convera’s behalf, in accordance with its standard policies and
practices.
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| 3. |
In
consideration for the Employee’s execution of this Agreement, Convera
additionally agrees to:
|
| (a) |
pay
any COBRA premiums on behalf of Employee through July 28, 2007
(“COBRA Payment Period”), provided Employee is eligible for such benefits.
At the conclusion of the COBRA Payment Period, Employee may be eligible
to
continue to receive coverage under COBRA provided that the Employee
makes
timely premium payments in accordance with COBRA. If at any time during
the COBRA Payment Period Employee secures other employment providing
health insurance benefits, or if Employee secures health insurance
benefits from any other source, Employee will immediately notify Convera
in writing and Convera’s obligations under this provision of the Agreement
shall cease. Employee will receive additional information regarding
COBRA
under separate cover; and
|
| (b) |
permit
Employee to keep the Dell laptop computer Employee was given in connection
with his employment, so long as all Convera information is deleted
from
the computer as of the Vesting Date, defined
below.
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| 4. |
Convera
confirms that regardless of Employee’s undertakings in this Agreement, it
is obligated to:
|
| (a) |
notify
Principal Financial Group, which holds Employee’s 401(k) funds, of
Employee’s employment termination. If the value of Employee’s account is
between $1,000 and $5,000, Employee must make an immediate decision
regarding the disposition of his funds. If no decision is made, the
funds
will be rolled into the Principal Bank Safe Harbor XXX. Account values
of
less than $1,000 will be paid in cash;
|
| (b) |
cease
any deductions for the Convera Employee Stock Purchase Plan and refund
any
funds remaining after the next purchase;
and
|
| (c) |
offer
Employee the opportunity to convert term life or supplemental life
insurance coverage, if applicable; and
|
| (d) |
allow
Employee 90 days from the Notice Date to exercise all Convera Stock
Options vested as of the Notice Date, which include 37,499 options
exercisable at $3.00 per share, 12,500 options exercisable at $4.71
per
share, and 12,500 options exercisable at $4.70 per
share.
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| 5. |
From
the Notice Date through September 11, 2006 (the “Vesting Date”),
Employee shall cooperate and assist Convera upon its reasonable request,
during normal business hours, in resolving any issues arising out of
or in
connection with Employee’s former employment with Convera, including,
without limitation, assisting Convera in closing its books and preparing
financial statements for the second quarter of fiscal year 2007 and
in
preparing Convera’s Form 10-Q for such quarter. In consideration for the
Employee’s agreement to perform this obligation, whether or not Convera
requests assistance or cooperation, Convera shall accelerate the vesting
date of the following stock options (collectively, the “Stock Options”) to
September 11, 2006:
|
|
(a)
|
37,500
shares at a strike price of $3.00, otherwise scheduled to vest on
November
1, 2006;
|
|
(b)
|
12,500
shares at a strike price of $4.71, otherwise scheduled to vest on
November
30, 2006; and
|
|
(c)
|
12,500
shares at a strike price of $4.70, otherwise scheduled to vest on
December
25, 2006.
|
All
of
such accelerated Stock Options shall be exercisable through the close of
business on October 31, 2006, and the right to exercise shall terminate on
that date.
| 6. |
Employee
acknowledges and agrees that the payments and benefits provided under
this
Agreement are in excess of any amounts which may be due to Employee
based
on Employee’s employment with Convera or under any policy, plan or
procedure of Convera (including its predecessors, Excalibur Technologies,
Inc. and/or Intel Corporation’s Interactive Media Services division
(collectively, “Predecessors”), or under any prior agreement, whether
written or oral, between Employee and Convera or its Predecessors,
and
that Employee shall receive no benefits additional to those set forth
above.
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| 7. |
This
Agreement constitutes full and final settlement of any and all claims
Employee has or may have, whether known or unknown, arising out of
or
relating in any way to Employee’s employment with or separation from
Convera. In exchange for the payments and benefits provided for in
this
Agreement, including the Separation Allowance, and for other good and
valuable consideration, the receipt and sufficiency of which are expressly
acknowledged, Employee hereby unconditionally releases Convera from
any
and all claims, causes of action, liability, costs, expenses, demands,
charges, fines, penalties, attorney’s fees, duties or obligations of any
kind whatsoever arising out of or relating to Employee’s employment by or
separation from Convera, whether known or unknown now existing, including
but not limited to, claims of discrimination or breach of contract,
and
claims based in whole or in part on the Civil Rights Act of 1991, the
Civil Rights Act of 1964, the Americans with Disabilities Act of 1990,
Executive Order 11246, The Equal Pay Act of 1963, the Rehabilitation
Act
of 1973, the Fair Labor Standards Act, the Age Discrimination in
Employment Act of 1967, The Civil Rights Act of 1866, the Family &
Medical Leave Act, the Xxxxxxxx-Xxxxx Act, the Virginia Human Rights
Law,
the Virginia Equal Pay Act, or under any other employee relations law,
employee benefits law or applicable federal, state, local, foreign
or
other law or regulations in any jurisdiction, or causes of action sounding
in tort or in contract or any other cause of action arising under the
common law of the State of Virginia, including but not limited to any
claims for wages, commissions, bonuses, expense reimbursement or other
forms of compensation, monetary or equitable relief, damages of any
nature
and/or attorney’s fees.
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| 8. |
Employee
agrees and acknowledges that information and materials in written,
oral,
magnetic, photographic, optical or other form or created during the
period
of Employee’s employment or engagement with Convera or its Predecessors
are proprietary to Convera and are highly sensitive in nature (the
“Confidential Information”). Such Confidential Information is any
information not in the public domain, including but not limited
to:
|
| (a) |
All
data, documents, materials, drawings and information received in tangible
form and marked “Proprietary” or
“Confidential”;
|
| (b) |
Any
and all ideas, concepts, know-how, methods, techniques, structures,
information and materials relating to existing software products and
software in various states of research and development including, but
not
limited to, source code, object and load modules, requirements
specifications, design specification, design notes, flow charts, coding
sheets, annotations, documentation, technical and engineering data,
laboratory studies, benchmark test results, and the structures,
organization, sequence, designs, formulas and algorithms which reside
in
the software and which are not generally known independently to the
public
or within the industries or trades in which Convera
competes;
|
| (c) |
Internal
business procedures and business plans, including analytical methods
and
procedures, licensing techniques, manufacturing information and procedures
such as formulations, processes and equipment, technical and engineering
data, vendor names, other vendor information, purchasing information,
financial information, service and operational manuals and related
documentation, ideas for new products and services and other such
information which relates to the way Convera conducts its business
which
is not generally known to the public;
|
| (d) |
Patents,
copyrights, trade secrets, trademarks, service marks, and the
like;
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| (e) |
Any
and all customer and marketing information and materials, such as
strategic data, including marketing and development plans, forecasts
and
forecast
assumptions and volumes, and future plans and potential strategies
which
have been or are being discussed; financial data, including price and
cost
objectives, price lists, pricing policies and procedures, and quoting
policies and procedures; and customer data, including customer lists,
names of existing, past or prospective customers and their
representatives, data provided by or about prospective, existing or
past
customers, customer service information and materials, data about the
terms, conditions and expiration dates of existing contracts with
customers and the type, quantity and specifications of products and
services purchased, leased or licensed by customers of Convera;
and
|
| (f) |
Any
and all information and materials in Convera’s possession or under its
control from any other person or entity to which it is obligated to
treat
as confidential or proprietary.
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| 9. |
Employee
represents and warrants that he has complied with and will continue
to
comply with the provisions of any employment, non-compete and/or
confidentiality agreement or similar agreements previously entered
into
between Employee and Convera or its Predecessors (collectively the
“Employee Confidentiality Agreement”) and herein expressly reaffirms the
enforceability of the same. Employee expressly confirms that he knows
of
no reason why any promise or obligation set forth in any Employee
Confidentiality Agreement should not be fully enforceable against
Employee. In addition, Employee affirms that Employee has not done
or in
any way been a party to, or knowingly permitted, and will not engage
in or
permit any of the following:
|
| (a) |
Disclosure
of any Confidential Information or trade secrets of
Convera;
|
| (b) |
Retention
of any trade secrets or Confidential Information of
Convera;
|
| (c) |
Copying
or otherwise reproducing any Confidential Information of Convera;
or
|
| (d) |
Retention
of any materials or personal property (including any documents or other
written materials, or any items of computer or other hardware, or any
software, or any office equipment) belonging to, or in the possession
of,
Convera.
|
| 10. |
To
enable Employee to perform his obligations in Section 5, the parties
agree that Employee will deliver to Convera all materials embodying
trade
secrets or Confidential Information and all other tangible or intangible
property of Convera, on or before the Vesting
Date.
|
| 11. |
Employee
agrees that for a period of twelve (12) months following the Notice
Date
he will not solicit or induce, or attempt to solicit or induce, any
current or future employee of Convera to leave Convera for any reason
and
that Employee agrees that he will not attempt to contact Convera's
clients
or potential clients of which he is aware with regard to Convera's
products and business. Employee further agrees and acknowledges that
all
work performed, created and conceived relating to Employee’s scope of
employment or Convera’s or the Predecessors’ scope of employment while in
the employ of Convera or the Predecessors, was done so pursuant to
the
Work Made for Hire Doctrine and as such, as between Employee and Convera,
is the property of Convera.
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| 12. |
Employee
acknowledges that by virtue of Employee’s employment by Convera, and over
the course of that employment, Employee has obtained trade secrets
and
Confidential Information of Convera, the use or disclosure of which
would
cause irreparable harm to Convera. Employee further acknowledges that
money damages are not a sufficient remedy for breach of this Agreement
and
that Convera shall be entitled, in addition to any and all other remedies
available to Convera, the entry of preliminary injunctive relief as
a
remedy for such breach without the need to post a bond and without
proof
of actual damages. In the event that Convera is required to enforce
its
rights under this Agreement and prevails, Employee agrees that Convera
shall be entitled to recover all costs and fees
incurred.
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| 13. |
Employee
confirms that, for a period of twelve (12) months following the Notice
Date, he will not accept employment or consultancy with the following
companies: Verity, Autonomy, Endeca or Fast Company and their respective
successors, if any.
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| 14. |
Except
as provided herein and except with respect to any Employee Confidentiality
Agreement, including any similar agreements or non-compete agreements
or
arrangement signed by Employee and Convera, which will remain in full
force and effect to the extent not inconsistent with this Agreement,
this
Agreement supersedes, cancels and replaces any other agreement between
Employee and Convera. Any right or entitlement in effect or available
to
Employee under any such other agreement is hereby unconditionally and
irrevocably waived by Employee to the maximum extent permissible.
Notwithstanding the foregoing, any agreement between Employee and Convera
and/or the Predecessors, by which Employee has assigned intellectual
property to Convera shall remain in effect.
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| 15. |
This
Agreement may not be changed or altered, except by a writing signed
by
Convera and Employee. If any portion of this Agreement should ever
be
determined to be unenforceable, it is agreed that this will not affect
the
enforceability of any other clause or the remainder of the Agreement.
Further, any material breach of this Agreement by Convera or Employee
that
is proven in a court of law shall excuse the other from further
performance of this Agreement. If Convera shall prove in a court of
law
that Employee has breached this Agreement, Convera is entitled to full
reimbursement of any of the payments or benefits provided for in Paragraph
3, without limitation upon any other rights or remedies Convera may
have
under this Agreement or applicable law. Such reimbursement shall not
be
construed as indicating that Convera has an adequate remedy at law
or be
used in any way to contest a claim for injunctive
relief.
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| 16. |
This
Agreement shall be governed by and, for all purposes, construed and
enforced in accordance with the laws of the State of Virginia applicable
to contracts made and to be performed in such state. Convera and Employee
agree that the federal or state courts of the State of Virginia shall
have
sole and exclusive jurisdiction over any claim or cause of action relating
to this Agreement or Employee’s employment by Convera or the termination
of such employment, and Employee hereby consents to accept service
of
process as provided under Virginia law or by registered mail, return
receipt requested, and waives any objection to personal jurisdiction
of
Employee in the state or federal courts of the State of Virginia.
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| 17. |
Employee
agrees that the terms and conditions of this Agreement are sensitive
and
are not to be disclosed by Employee to any current, future or past
employees of Convera. In addition, Employee agrees that he will not
in any
manner, oral or written, disparage Convera in any way. Convera agrees
that
no authorized representative of the Company will in any manner, oral
or
written, disparage Employee in any way. Any violation of this provision
proven in a court of law shall be deemed a material breach of this
Agreement.
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ACKNOWLEDGMENTS
| 18. |
I
acknowledge that, as of the date of my signature affixed hereto and
with
the exception of matters that have been previously disclosed in public
filings, I have no actual, personal knowledge of any legal action or
threatened legal action against Convera, any accounting irregularities
or
other financial improprieties at Convera, or any violation or threatened
violation of any of Convera’s policies or procedures or law by myself or
any officers, directors, stockholders, employees, agents, representatives,
parent Convera Corporation, subsidiaries, affiliates, divisions,
successors and assigns of Convera.
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| 19. |
I
acknowledge that I am knowingly and voluntarily waiving and releasing
any
rights I may have under the federal
Age Discrimination in Employment Act of 1967, as amended
(“ADEA”).
I
also acknowledge that the consideration given for the waiver and release
in Paragraph 3 of this Agreement, including my waiver of any claims
arising under the ADEA, is in addition to anything of value to which
I was
already entitled. I further acknowledge that I have been advised by
this
writing, as required by the ADEA, that: (a) my waiver and release do
not
apply to any rights or claims that may arise after the execution date
of
this Agreement; (b) I have been advised hereby that I have the right
to,
and should, consult with an attorney prior to executing this Agreement;
(c) I have twenty-one (21) days to consider, execute and return this
Agreement (although I may choose to voluntarily execute and return
this
Agreement earlier); (d) I have seven (7) days following the execution
of
this Agreement by the parties to revoke the Agreement (the “Revocation
Period”); and (e) this Agreement shall not be effective until the date
upon which the Revocation Period has expired, which shall be the eighth
(8th)
day after this Agreement is executed by me, provided that the Company
has
also executed this Agreement by that date (“Effective
Date”).
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I
AGREE
TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND RELEASE. I
ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND RELEASE AND UNDERSTAND
ALL OF ITS TERMS, INCLUDING THE FULL AND FINAL RELEASE OF CLAIMS SET FORTH
ABOVE. I FURTHER ACKNOWLEDGE THAT I HAVE VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND RELEASE, THAT I HAVE NOT RELIED UPON ANY REPRESENTATION OR STATEMENT,
WRITTEN OR ORAL, NOT SET FORTH IN THIS AGREEMENT, AND THAT I HAVE BEEN GIVEN
THE
OPPORTUNITY AND ENCOURAGED TO HAVE THIS AGREEMENT AND RELEASE REVIEWED BY AN
ATTORNEY.
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CONVERA
TECHNOLOGIES
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XXXX
X. XXXXXXX
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|
By:
/s/Xxxxxxx X. Condo
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/s/Xxxx
X. Xxxxxxx
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Authorized
Signature
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Employee’s
Signature
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Dated:
July
28, 2006
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Dated:
July
28, 2006
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