SEVERANCE, SETTLEMENT AND GENERAL RELEASE AGREEMENT
THIS AMENDED AND RESTATED SEVERANCE, SETTLEMENT AND GENERAL
RELEASE AGREEMENT (the "Agreement") is made and entered into as of the 9th day
of February, 2000 by and among Xxxxx X. Traveller ("SHT"), eAcceleration Corp.,
a Delaware corporation ("eAcceleration") and Acceleration Software International
Corporation, a Washington corporation ("ASIC", and together with eAcceleration,
the "Company") (collectively, the "Parties"). The Parties acknowledge that the
terms and conditions of this Agreement have been voluntarily agreed to and that
such terms are final and binding.
WHEREAS, SHT was employed by the Company as Chief Financial Officer;
WHEREAS, the Company desired to accept SHT's resignation as employee and
officer; and
WHEREAS, the Parties entered into a severance, settlement and General
Release Agreement (the "Original Agreement") on February 9, 2000, whereby the
Parties desired to settle fully and finally claims SHT may have had against the
Company and that the Company may have had against SHT and others released
therein, including, but not limited to, any matters arising out of his
employment with the Company and his separation therefrom.
WHEREAS, the Parties desire to amend certain terms of the Original
Agreement and restate all of the terms of the Original Agreement as set forth
hereby.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
1. Non-Admission of Liability or Wrongdoing.
This Agreement shall not be construed in any way as an admission by the
Parties that any of them have acted wrongfully with respect to any other or any
other person or that any one of them has any rights whatsoever against the
others.
2. Resignation.
Effective as of the date hereof, SHT hereby resigns as an officer,
including as Chief Financial Officer, and employee of the Company. SHT agrees to
return to the Company all assets, equipment or other items which are owned by
the Company not later than ten (10) days after the date of this Agreement.
3. Consideration to SHT.
(a) The Company shall pay to SHT $1,000 within seven (7) days following
the execution and delivery of this Agreement;
(b) The Company shall pay to SHT all salary payments for the month of
February 2000 that he would have received if his employment with the Company was
not terminated, at such times and in such manner as is in accordance with the
Company's normal payroll procedures;
(c) The Company shall pay to SHT the sum of $26,000 within ten (10)
days following the first closing, of the initial public offering of the
Company's common stock in connection with the Registration Statement on Form
SB-2 filed by the Company with the Securities and Exchange Commission on
November 12, 1999 (the "Offering") or on or before June 30, 2000, whichever is
sooner;
(d) The Company shall pay to SHT the sum of $17,000 within ten (10)
days following the date upon which the Company's common stock becomes publicly
traded; and
(e) Subject to the terms of the ASIC's 1999 Amended and Restated Stock
Incentive Compensation Plan and the Nonqualified Stock Option Letter Agreement
between ASIC and SHT, dated the date hereof (the "Option Agreement"), all stock
options previously granted SHT by ASIC shall be amended so that SHT has options
to purchase 20,000 shares of ASIC's common stock with an exercise price of $2.39
per share, which will fully vest and become exercisable immediately upon the
Company's common stock becoming publicly traded and shall at the time of the
proposed merger of ASIC with eAcceleration be options to purchase 10,000 shares
of eAcceleration's common stock with an exercise price of $4.78 per share. The
options shall be exercisable for a period of five (5) years from and after the
date such options vest, and thereafter shall terminate. Other than the options
set forth in this Section 3, SHT has no other options or entitlements to any
kind of other securities to purchase any other securities of ASIC or
eAcceleration. SHT acknowledges that the material breach of any terms of this
Agreement by SHT shall entitle the Company, upon written notice to SHT, to
immediately cancel SHT's option rights arising hereunder.
4. Ongoing Consulting Obligations of SHT
From and after the date hereof, until immediately following the
termination of the Offering (the "Consulting Period"), SHT shall make himself
available to the Company at reasonable times and upon reasonable notice to
assist and consult with the Company's Chief Executive Officer with respect to
marketing, financial, accounting and administration matters and other activities
of the Company which SHT was involved in during his employment by the Company.
SHT shall not be entitled to any additional consideration for services rendered
pursuant to this Section 4, nor be entitled to participate in any benefits
provided to Company employees in connection with services provided to Company
during the Consulting Period. SHT shall have no communications about the affairs
or operations of the Company with Company employees or consultants, the public,
suppliers, vendors or industry participants without the express written
authorization of the Chief Executive Officer of the Company. SHT shall enter
into no contracts and make no commitments on behalf of or in the name of
2
the Company on or following the effective date of SHT's resignation in
accordance with Section 2 including during the Consulting Period or at any time
thereafter.
5. Complete Release.
(a) As a material inducement to the Company to enter into this
Agreement, SHT hereby waives, releases and discharges the Company, its
subsidiaries and their respective officers, directors, stockholders, employees,
agents, attorneys, subsidiaries, servants, successors, insurers, affiliates and
their successors and assigns, from any and all manner of action, claims, liens,
demands, liabilities, causes of action, charges, complaints, suits (judicial,
administrative or otherwise), damages, debts, demands, obligations of any other
nature, past or present, known or unknown, whether in law or in equity, whether
founded upon contract (expressed or implied), tort (including, but not limited
to, defamation), statute or regulation (State, Federal or local), common law
and/or any other theory or basis, from the beginning of the world to the date
hereof, including, but not limited to, any claim that SHT has asserted, now
asserts or could have asserted, but not including any claim for the enforcement
of this Agreement. This includes, but is not limited to, claims arising under
any Federal, State or local laws (whether statutory, regulatory or judicial in
origin) or that prohibit employment or other discrimination or claims growing
out of any legal restrictions on the Company's rights to terminate its
employees, including without limitation any claim arising under Title VII of the
United States Code or under any age, gender or disability-related discrimination
law. Notwithstanding anything else contained in this Agreement, this Agreement
is not intended to release any rights SHT has to seek and obtain indemnification
and/or defense in the event that any claim is asserted against SHT by a third
party.
(b) As a material inducement to SHT to enter into this Agreement, the
Company and its subsidiaries hereby irrevocably and unconditionally waives,
releases and discharges SHT, his agents and attorneys, successors and assigns,
from any and all manner of action, claims, liens, demands, liabilities, causes
of action, charges, complaints, suits (judicial, administrative or otherwise),
damages, debts, demands, obligations of any other nature, past or present, known
or unknown to the Company, whether in law or in equity, whether founded upon
contract (expressed or implied), tort (including, but not limited to,
defamation), statute or regulation (State, Federal or local), common law and/or
any other theory or basis, from the beginning of the world to the date hereof,
arising out of his employment and position as an officer and/or employee, and
the resignation therefrom or the termination thereof, including, but not limited
to, any claim that the Company has asserted, now asserts or could have asserted,
but not including any (i) claims related to or for the enforcement of this
Agreement and (ii) action, claims, liens, demands, liabilities, causes of
action, charges, complaints, suits (judicial, administrative or otherwise),
damages, debts, demands or obligations of any other nature that arise out of or
relate to any willful misconduct, negligence or fraud committed by SHT, or any
violation thereby, unless such actions were taken in good faith with a
reasonable belief that such actions were in the best interests of the Company.
Notwithstanding anything else contained in this Agreement, this Agreement is not
intended to release any rights the Company has to seek and obtain
indemnification and/or defense in the event that any claim is asserted against
the Company by a third party.
(c) It is understood and agreed by the Parties that the facts and
respective assumptions of law in contemplation of which this Agreement is made
may hereafter prove to be other than or different from those facts and
assumptions now known, made or believed by them to be true. The
3
Parties expressly accept and assume the risk of the facts and assumptions
to be so different, and agree that all terms of this agreement shall be in all
respects effective and not subject to termination or reclusion by any such
difference in facts or assumptions of law.
6. Acknowledgments.
SHT acknowledges that:
(a) He has carefully read and fully understands all of the provisions
of this Agreement;
(b) He is, through this Agreement, releasing the Company and its
affiliates from any and all claims he or she may have against any of them and
being released from certain liabilities by the Company;
(c) He knowingly and voluntarily agrees to all of the terms set forth
in this Agreement;
(d) He knowingly and voluntarily intends to be legally bound by the
same;
(e) He was advised and hereby is advised in writing to consider the
terms of this Agreement and consult with an attorney of his or her choice prior
to executing this Agreement; and
(f) He has a full seven (7) days following the execution of this
Agreement to revoke this Agreement and has been and hereby is advised in writing
that this Agreement shall not become effective or enforceable until the
revocation period has expired.
7. Non-Disclosure.
SHT shall not disclose or deliver to any other party any trade secrets
or confidential or proprietary information gained through employment with the
Company. This includes, but is not limited to, proprietary technologies,
patents, patent applications, software programs and tools, financial
information, business plans, systems, files, algorithms, file structures,
customer lists, supplier lists, internal program structures, options,
documentation and data developed by the Company or any subsidiary or division
thereof. SHT agrees that any breach of this Section 7 may cause the Company
substantial and irreparable damages that would not be quantifiable and
therefore, in the event of any such breach, in addition to other remedies that
may be available, the Company shall have the right to seek specific performance
and other injunctive and equitable relief.
8. Non-Disparagement.
The Parties mutually agree not to publish, communicate or disseminate
any negative information regarding this Agreement to the public, the media,
suppliers, vendors and/or other industry participants.
4
9. No Representations.
The Parties represent that in signing this Agreement, they do not rely
on nor have they relied on any representation or statement not specifically set
forth in this Agreement by any of the releasees or by any of the releasees'
agents, representatives or attorneys with regard to the subject matter, basis or
effect of this Agreement or otherwise.
10. Successors.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective administrators, representatives, executors,
successors and assigns, by reason of merger, consolidation, and/or purchase or
acquisition of substantially all of the Company's assets or otherwise.
11. Governing Law.
This agreement is made and entered into in this State of Washington, and
shall in all respects be interpreted, enforced and governed under the laws of
the State of Washington.
12. Arbitration.
(a) Any dispute arising between the Parties, including but not limited
to those pertaining to the formation, validity, interpretation, effect or
alleged breach of this Agreement ("Arbitrable Dispute") will be submitted to
arbitration in Seattle, Washington, before an experienced employment arbitrator
and selected in accordance with the rules of the American Arbitration
Association labor tribunal. Each party shall pay the fees of their respective
attorneys, the expenses of their witnesses and any other expenses connected with
presenting their claim. Other costs of the arbitration, including the fees of
the arbitrator, cost of any record or transcript of the arbitration,
administrative fees, and other fees and costs shall be borne equally by the
Parties.
(b) Should any party to this Agreement hereafter institute any legal
action or administrative proceedings against another party with respect to any
claim waived by this Agreement or pursue any other Arbitrable Dispute by any
method other than said arbitration, the responding party shall be entitled to
recover from the initiating party all damages, costs, expenses and attorneys'
fees incurred as a result of such action.
13. Proper Construction.
(a) The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties;
(b) As used in this Agreement, the term "or" shall be deemed to include
the term "and/or" and the singular or plural number shall be deemed to include
the other whenever the context so indicates or requires;
5
(c) The paragraph headings used in this Agreement are intended solely
for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the interpretation of any of the provisions hereof.
14. Severability.
Should any of the provisions of this Agreement be declared or be
determined to be illegal or invalid, the validity of the remaining parts, terms
or provisions shall not be affected thereby and said illegal or invalid part,
term or provision shall be deemed not to be a part of this Agreement.
15. Entire Agreement.
This Agreement and the Option Agreement set forth the entire agreement
between the Parties, and fully supersede any and all prior agreements or
understandings between the Parties pertaining to the subject matter hereof. All
other contracts, agreements or understandings between the Parties are null and
void.
16. Non-Solicitation and Non-Interference.
For a period of twelve (12) months after the date of this Agreement, SHT
shall not:
(a) for SHT's own account or for the account of any other person or
entity, directly or indirectly interfere with the Company's or any of its
affiliates' or subsidiaries' relationship with any of its suppliers, customers,
accounts, brokers, representatives or agents; or
(b) employ or otherwise engage, or solicit, entice or induce on
behalf of himself or any other person or entity, directly or indirectly, the
services, retention or employment of any current employee or consultant of the
Company or of any affiliate or subsidiary of the Company.
17. Counterparts.
This Agreement may be executed in counterparts. Each counterpart shall
be deemed an original, and when taken together with the other signed
counterpart, shall constitute one fully executed Agreement.
18. Further Assurances.
From and after the date hereof, the parties hereto shall take all
actions, including the execution and delivery of all documents, necessary to
effectuate the terms hereof.
19. Survival.
All obligations of the Parties as set forth herein shall survive the
execution and delivery hereof.
6
PLEASE READ CAREFULLY. THIS AMENDED AND RESTATED SEVERANCE,
SETTLEMENT AND GENERAL RELEASE AGREEMENT INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
Poulsbo, Washington Poulsbo, Washington
Dated as of: February 9, 2000 Dated as of: February 9, 2000
/s/ Xxxxx X. Traveller
----------------------------------------
Xxxxx X. Traveller
eACCELERATION CORP.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
President and Chief Executive Officer
ACCELERATION SOFTWARE INTERNATIONAL
CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
President and Chief Executive Officer
