EXHIBIT 10.27
May 11, 2004
Mr. Xxxxx Xxxxxxx
[ Address ]
[ Address ]
PERSONAL AND CONFIDENTIAL
Dear Xxx:
This letter sets forth the substance of the separation agreement (the
"Agreement") which Vitria Technology; Inc. (the "Company") is offering to you to
aid in your employment transition.
NOTIFICATION DATE: May 7, 2004
SEPARATION DATE: May 14, 2004
RETURN DATE: You will have until May 29, 2004 to accept this
Agreement.
1. SEPARATION. Your last day of employment with the Company will be May
14, 2004 (the "Separation Date"). On the Separation Date, you will
be paid all accrued salary, and all accrued and unused vacation
earned through the Separation Date, subject to standard deductions
and withholdings. You are entitled to these payments regardless of
whether you sign this Agreement.
2. SEVERANCE. If you sign this Agreement and comply with your
obligations herein, the Company will pay you a one-time lump sum
amount equal to your annual salary of $275,000 plus the remaining
guaranteed portion of your 2004 bonus equal to $68,500.
3. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any
additional compensation, severance or benefits after the Separation
Date.
4. STOCK OPTIONS. You expressly acknowledge and agree that your Company
stock options cease vesting the day after the Separation Date. You
must exercise vested options pursuant to the terms of Vitria
Technology, Inc.'s EQUITY INCENTIVE PLAN, within ninety (90) days
after the Separation Date.
2 May 11, 2004
5. HEALTH INSURANCE. To the extent provided by federal COBRA law and
the Company's current group health insurance policies, you are
eligible to continue your current health insurance benefits at your
own expense. Later, you may be able to convert to an individual
policy through the provider of the Company's health insurance. If
you timely elect coverage under COBRA and comply with all of your
obligations under this Agreement, then the Company will pay the
premiums necessary to continue your current health insurance
benefits for twelve (12) months following the Separation Date.
6. EXPENSE REIMBURSEMENTS. You agree that within thirty (30) days of
the Separation Date, you will submit your final documented expense
reimbursement statement to Human Resources reflecting all business
expenses you incurred through the Separation Date, if any, for which
you seek reimbursement. The Company will reimburse you for these
expenses pursuant to its regular business practice.
7. RETURN OF COMPANY PROPERTY. You agree to return to the Company on or
before the Separation Date or on a date otherwise agreed to in
writing with the Company, all Company property which you have had in
your possession at any time, including, but not limited to, Company
files, notes, drawings, records, business plans and forecasts,
financial information, specifications, computer-recorded
information, tangible property (including, but not limited to,
computers), credit cards, entry cards, identification badges and
keys; and any materials of any kind which contain or embody any
proprietary or confidential information of the Company (and all
reproductions thereof). Failure to return Company property as
specified herein shall entitle Vitria Technology, Inc. to withhold
severance benefits pursuant to this Agreement.
8. PROPRIETARY INFORMATION OBLIGATIONS. Both during and after your
employment you will refrain from any use or disclosure of the
Company's proprietary or confidential information or materials, and
you acknowledge that you continue to be bound by the terms of the
Company's Confidentiality Agreement attached hereto as Exhibit A.
9. CONFIDENTIALITY. The provisions of this Agreement shall be held in
strictest confidence by you and the Company and shall not be
publicized or disclosed in any manner whatsoever; provided, however,
that: (a) you may disclose this Agreement to your immediate family;
(b) the parties may disclose this Agreement in confidence to their
respective attorneys, accountants, auditors, tax preparers, and
financial advisors; (c) the Company may disclose this Agreement as
necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; 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.
3 May 11, 2004
10. NONSOLICITATION. You agree that for a period of 12 months
immediately following the notification of your termination of your
Vitria employment, you will not either directly or indirectly for
yourself or on the behalf of others solicit, encourage, recruit or
take any action intended to introduce Vitria employees or
contractors to terminate their relationship with Xxxxxx. You agree
to bring to Xxxxxx's attention any attempts to recruit current
employees by any company that you are employed with.
11. NONDISPARAGEMENT. You agree that you will not at any time disparage
the Company or its directors, officers, shareholders, agents, or
employees in any manner likely to be harmful to the personal or
business reputation of it or them, and the Company (through its
officers and directors) agrees that it will not disparage you in any
manner likely to be harmful to your personal or business reputation,
provided that both you and the Company shall respond accurately and
fully to any question, inquiry, or request for information when
required by legal process.
12. RELEASE. In exchange for the consideration provided to you by this
Agreement that you are not otherwise entitled to receive, you hereby
generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, parent and subsidiary entities, insurers,
affiliates, and assigns from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any
way related to events, acts, conduct, or omissions occurring prior
to or on the date you sign this Agreement. This general release
includes, but is not limited to: (1) all claims arising out of or in
any way related to your employment with the Company or the
termination of that employment; (2) all claims related to your
compensation or benefits from the Company, including salary,
bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other
ownership interests in the Company; (3) all claims for breach of
contract, wrongful termination, and breach of the implied covenant
of good faith and fair dealing; (4) all tort claims, including
claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (5) all federal, state, and local
statutory claims, including but not limited to claims for
discrimination, harassment, retaliation, attorneys' fees, or other
claims arising under the federal Civil Rights Act of 1964 (as
amended), the federal Americans with Disabilities Act of 1990, the
federal Age Discrimination in Employment Act of 1967 (as amended)
("ADEA"), and the California Fair Employment and Housing Act (as
amended).
13. ADEA WAIVER. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA. You
also acknowledge that the consideration given for the waiver and
release in the preceding paragraph hereof is in addition to anything
of value to which you are already entitled. You further acknowledge
that you have been hereby advised, as required by the ADEA, that
your waiver and release do not apply to any rights or claims that
may arise after the execution date of this Agreement. You are
advised to consult an attorney before waiving any rights that you
may have under the ADEA. In accordance with the ADEA, you have a
period of 21 days
4 May 11, 2004
in which to consider the terms of this Agreement (although you may
accept it sooner) and 7 days, after signing this Agreement, in which
you may choose to revoke your acceptance of its terms. If you
exercise this right of revocation, you must put the revocation in
writing and deliver or mail it to the Company within the seven (7)
day revocation period. A mailed revocation must be postmarked within
the seven (7) day revocation period and properly addressed to the
Company, to the attention of the individual who has signed this
letter. Eight (8) days after both parties have signed this Agreement
(the "Effective Date"), its terms will automatically become
effective provided that you have returned the Agreement to the
individual who has signed this letter, unless you have revoked your
acceptance of the terms.
14. SECTION 1542 WAIVER. IN GIVING THE RELEASES SET FORTH IN THIS
AGREEMENT, WHICH INCLUDES CLAIMS WHICH MAY BE UNKNOWN TO YOU AT
PRESENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION
1542 OF THE CALIFORNIA CIVIL CODE WHICH READS AS FOLLOWS: "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR." YOU HEREBY EXPRESSLY WAIVE AND
RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF
ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF
ANY UNKNOWN OR UNSUSPECTED CLAIMS.
15. MISCELLANEOUS. This Agreement, including Exhibit A, constitutes the
complete, final and exclusive embodiment of the entire agreement
between you and the Company with regard to this subject matter. It
is entered into without reliance on any promise or representation,
written or oral, other than those expressly contained herein, and it
supersedes any other such promises, warranties or representations.
This Agreement may not be modified or amended except in writing
signed by both you and a duly authorized officer of the Company.
This Agreement shall bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the
benefit of both you and the Company, their heirs, successors and
assigns. If any provision of this Agreement is determined to be
invalid 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 by the court so as to be
rendered enforceable. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with
the laws of the State of California as applied to contracts made and
to be performed entirely within California.
5 May 11, 2004
If this Agreement is acceptable to you, please sign below and return it to me.
I wish you the best in your future endeavors.
Sincerely,
VITRIA TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
CEO
Exhibit A: Confidentiality Agreement
ACCEPTED AND AGREED:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
May 14, 2004
Date
6 May 11, 2004
EXHIBIT A
CONFIDENTIALITY AGREEMENT
