CENTURA SOFTWARE CORPORATION
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("AGREEMENT") is made by and
between Centura Software Corporation, a California corporation (the
"COMPANY"), and Xxxxxx X. Xxxxx ("XX. XXXXX").
WHEREAS, Xx. Xxxxx is employed by the Company; and
WHEREAS, the Company and Xx. Xxxxx have mutually agreed to terminate the
existing employment relationship and to release each other from any claims
arising from or related to the employment relationship.
NOW, THEREFORE, in consideration of the mutual promises made herein, the
Company and Xx. Xxxxx (collectively referred to as the "PARTIES") hereby
agree as follows:
1. RESIGNATION. Xx. Xxxxx and the Company agree that Xx. Xxxxx'x
status as President, Chief Executive Officer and Chairman of the Board of
Directors of the Company and all other positions of the Company held by Xx.
Xxxxx shall terminate on December 8, 1997, provided, however, that Xx.
Xxxxx'x employment with the Company shall continue beyond the termination of
such status as provided in this Agreement; and provided further than Xx.
Xxxxx shall remain a Director of the Company until Xx. Xxxxx resigns such
position or is requested to resign by the Company's Board of Directors, at
which time Xx. Xxxxx agrees to resign such position.
2. CONTINUATION OF EMPLOYMENT. In consideration for the release of
claims by Xx. Xxxxx set forth below and other obligations under this
Agreement, the Company and Xx. Xxxxx agree to the following terms with
respect to continuation of Xx. Xxxxx'x employment by the Company:
(a) that Xx. Xxxxx shall continue to work as a full-time employee
of the Company until December 31, 1997 (the "Termination Date"), and shall be
entitled to receive his current base salary and any earned but unpaid bonus
and accrued vacation (less applicable withholding) through December 31, 1997
in accordance with the Company's regular payroll practices while so employed;
and
(b) that as a condition to Xx. Xxxxx'x continued employment with
the Company, during the period commencing on January 1, 1998 and continuing
through July 31, 1998 (the "Service Period"), Xx. Xxxxx agrees to provide
services to the Company as follows:
(i) Xx. Xxxxx shall be available to assist the President,
or other employees of the Company as designated by the President, in
fulfilling such projects reasonably consistent with Xx. Xxxxx'x prior
position with the Company as requested by the President;
(ii) Xx. Xxxxx shall report directly to the President of
the Company; and
(iii) Xx. Xxxxx shall contact the President no less
frequently than monthly, at a day and time each month mutually agreed to by
Xx. Xxxxx and the President, to report the status of Xx. Xxxxx'x continuing
projects for the Company.
To facilitate Xx. Xxxxx'x rendering of services to the Company, as set forth
above, during the Service Period, the Company agrees to maintain Xx. Xxxxx'x
electronic mail addresses on the Company's systems. Xx. Xxxxx hereby
acknowledges and agrees that the performance of his services is on an at-will
basis, and that his services may be terminated at any time for any reason by
the Company or Xx. Xxxxx upon ten (10) days' written notice.
3. PAYMENT. In consideration for the release of claims set forth below
and Xx. Xxxxx'x continued services to the Company during the Service Period,
the Company agrees to pay Xx. Xxxxx a lump sum payment of $233,333.33, which
is equal to seven months of current base salary (less applicable tax
withholding), on or about January 5, 1998, the first business day of the
Service Period.
4. EMPLOYEE BENEFITS.
(a) Xx. Xxxxx shall continue to receive the Company's life,
medical, dental and vision insurance benefits at Company expense until the
earlier of July 31, 1998 or the date on which Xx. Xxxxx commences full or
part-time employment with a new employer, which date shall be the "qualifying
event" date under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended ("COBRA"). Following such date, Xx. Xxxxx shall have the right to
continue, at his own expense, coverage under the Company's medical, dental
and vision (but not life) insurance programs as provided by COBRA.
(b) Except as otherwise provided above, Xx. Xxxxx shall not be
entitled to participate in any of the Company's benefit plans or programs
offered to employees or officers of the Company, including, but not limited
to, any accrual of vacation, after the Termination Date.
5. STOCK OPTIONS. Under the terms of the Stock Option Agreements issued
to Xx. Xxxxx over the course of his employment with the Company, Xx. Xxxxx
was granted options to purchase 479,999 (the "January 1996 Options"), and
120,000 (the "March 1997 Option") total shares of the Company's Common Stock
under the Company's 1986 Stock Option Plan and 1995 Stock Option Plan,
respectively. The January 1996 Options and the March 1997 Option may
hereinafter be referred to collectively as the Options. As of the
Termination Date, 260,000 shares under the January 1996 Options and 0 shares
under the March 1997 Option have vested, respectively (the "Vested Shares")
and 219,999 and 120,000 shares, respectively, have not vested (the "Unvested
Shares"). Subject to the provisions set forth in the next sentence, in
consideration for the release of claims set forth below and for Xx. Xxxxx'x
continued services to the Company during the Service Period, as well as other
obligations under this Agreement, the Options shall continue to vest at their
regular monthly vesting rate during the Service Period or so long as Xx.
Xxxxx serves as a member of the Board, and such Options shall thereafter
be
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exercisable with respect to such fully vested option shares for 30 days
after the later of the date on which Xx. Xxxxx ceases to provide services to
the Company in accordance with Section 2(b) above or ceases to serve as a
director of the Company, but no later than 30 days after July 31, 1998. The
foregoing provision shall be null and void and of no force or effect if: (i)
in the opinion of the Company's independent auditors, such continued vesting
would require the Company to recognize an additional compensation expense to
its income statement for the fiscal year ending December 31, 1997 or 1998, or
(ii) if it is determined by the Board of Directors, upon consultation with
the Company's management and independent auditors, that such continued
vesting would preclude accounting for any proposed business combination of
the Company as a pooling of interests, and the Board otherwise desires to
approve such a proposed business transaction which requires as a condition to
the closing of such transaction that it be accounted for as a pooling of
interests.
Xx. Xxxxx acknowledges and agrees that if the Options are not exercised
within 90 days of the Termination Date, they shall no longer qualify as
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, and shall thereafter be nonstatutory stock
options. Xx. Xxxxx further acknowledges and agrees that he shall remain
bound by all other terms of the Stock Option Agreements issued by the Company
to him.
6. NO OTHER PAYMENTS DUE. The Company agrees that it will continue to
pay to Xx. Xxxxx the salary described in Section 2(a) through the Termination
Date in accordance with the Company's normal payroll practices, and that the
Company will pay to Xx. Xxxxx on or before the Termination Date all salary as
may then be due to Xx. Xxxxx. Xx. Xxxxx will execute an acknowledgment of
receipt of all such payments as received and an acknowledgment that, in light
of the payment by the Company of all wages due, or to become due to Xx.
Xxxxx, California Labor Code Section 206.5 is not applicable to the Parties
hereto. That section provides in pertinent part as follows:
No employer shall require the execution of any release of any
claim or right on account of wages due, or to become due, or
made as an advance on wages to be earned, unless payment of
such wages has been made.
7. RELEASE OF CLAIMS. In consideration for the obligations of both
parties set forth in this Agreement, Xx. Xxxxx and the Company, on behalf of
themselves, and their respective heirs, executors, officers, directors,
employees, investors, stockholders, administrators and assigns, hereby fully
and forever release each other and their respective heirs, executors,
officers, directors, employees, investors, stockholders, administrators and
assigns, of and from any claim, duty, obligation or cause of action relating
to any matters of any kind, whether presently known or unknown, suspected or
unsuspected, that any of them may possess arising from any omissions, acts or
facts that have occurred up until and including the date of this Agreement
including, without limitation:
(a) any and all claims relating to or arising from Xx. Xxxxx'x
employment relationship with the Company and the termination of that
relationship;
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(b) any and all claims relating to, or arising from, Xx. Xxxxx'x
right to purchase, or actual purchase of shares of stock of the Company;
(c) any and all claims for wrongful discharge of employment; breach
of contract, both express and implied; breach of a covenant of good faith and
fair dealing, both express and implied, negligent or intentional infliction
of emotional distress; negligent or intentional misrepresentation; negligent
or intentional interference with contract or prospective economic advantage;
negligence; and defamation;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, and the
California Fair Employment and Housing Act;
(e) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Company and Xx. Xxxxx agree that the release set forth in this
Section 6 shall be and remain in effect in all respects as a complete general
release as to the matters released. This release does not extend to any
obligations incurred or specified under (i) this Agreement, (ii) the
Indemnification Agreement dated _____, 199___ between Xx. Xxxxx and the
Company (the "Indemnification Agreement"), or (iii) attributable to any act
of fraud by any party hereto.
Except as expressly provided herein, this Agreement shall supersede
and render null and void any and all prior agreements between the parties
other than the Indemnification Agreement, the Options, and the
Confidentiality Agreement as defined in Section 10 hereof.
8. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Xx. Xxxxx
acknowledges that he is waiving and releasing any rights he may have under
the Age Discrimination in Employment Act of 1967 ("ADEA") and that this
waiver and release is knowing and voluntary. Xx. Xxxxx and the Company agree
that this waiver and release does not apply to any rights or claims that may
arise under ADEA after the Effective Date of this Agreement. Xx. Xxxxx
acknowledges that the consideration given for this waiver and release
Agreement is in addition to anything of value to which Xx. Xxxxx was already
entitled. Xx. Xxxxx further acknowledges that he has been advised by this
writing that (a) he should consult with an attorney PRIOR to executing this
Agreement; (b) he has at least twenty-one (21) days within which to consider
this Agreement; (c) he has at least seven (7) days following the execution of
this Agreement by the Parties to revoke the Agreement (the "Revocation
Period"); and (d) this Agreement shall not be effective until the Revocation
Period has expired.
9. CIVIL CODE SECTION 1542. The Parties represent that they are not
aware of any claim by either of them other than the claims that are released
by this Agreement. Xx. Xxxxx and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
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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.
Xx. Xxxxx and the Company, being aware of said Code section, agree to
expressly waive any rights they may have thereunder, as well as under any
other statute or common law principles of similar effect.
10. NONDISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION. Xx.
Xxxxx understands and agrees that his obligations to the Company under his
existing Proprietary Information and Inventions Assignment and
Confidentiality Agreement between Xx. Xxxxx and the Company (the
"CONFIDENTIALITY AGREEMENT"), a copy of which is attached hereto as EXHIBIT
A, shall continue through the Termination Date and shall survive termination
of his relationship with the Company under this Agreement and that Xx. Xxxxx
shall continue to maintain the confidentiality of all confidential and
proprietary information of the Company as provided by the Confidentiality
Agreement. Xx. Xxxxx agrees that at all times hereafter, he shall not
intentionally divulge, furnish or make available to any party any of the
trade secrets, patents, patent applications, price decisions or
determinations, inventions, customers, proprietary information or other
intellectual property of the Company, until after such time as such
information has become publicly known otherwise than by act of collusion of
Xx. Xxxxx.
11. NONCOMPETITION AND NONSOLICITATION. Xx. Xxxxx agrees that through
the Service Period, Xx. Xxxxx shall not, without the prior written consent of
the Company, at any time, directly or indirectly, whether or not for
compensation, engage in, or have any interest in Pervasive Software Company
or Sybase Corporation (whether as an employee, officer, director, agent,
security holder, creditor, consultant, partner or otherwise). Xx. Xxxxx
further agrees that through the Service Period and a period of one year
thereafter, Xx. Xxxxx shall not induce or attempt to induce any person who is
an employee of the Company, or any affiliated company, to leave the Company,
or any affiliated company, to become an employee of any person, firm,
corporation or business that engages in any activity that is in direct
competition with the Company. It is expressly agreed by the Parties that
after the Termination Date Xx. Xxxxx may pursue and engage in full-time
employment that does not conflict with his obligations under this Section 11
and that such employment shall not constitute a breach of this Agreement by
Xx. Xxxxx.
The Parties intend that the covenant contained in the preceding paragraph
shall be construed as a series of separate covenants, one for each county or
other geographic or political subdivision of each jurisdiction in which the
Company conducts business. If, in any judicial proceeding, a court shall
refuse to enforce any of the separate covenants deemed included in this
paragraph, then the unenforceable covenant shall be deemed eliminated from
the provisions for the purpose of those proceedings to the extent necessary
to permit the remaining separate covenants to be enforced.
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12. NON-DISPARAGEMENT. Each Party agrees to refrain from any
disparagement, criticism, defamation, slander of the other, or tortious
interference with the contracts and relationships of the other. The
Company's personnel records will reflect that Xx. Xxxxx voluntarily
terminated his employment on the Employment Termination Date.
13. AUTHORITY. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Xx. Xxxxx represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents
that there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
14. NO REPRESENTATIONS. Neither Party has relied upon any
representations or statements made by the other Party hereto which are not
specifically set forth in this Agreement.
15. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court or other tribunal of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision.
16. ARBITRATION. The Parties shall attempt to settle all disputes
arising in connection with this Agreement through good faith consultation.
In the event no agreement can be reached on such dispute within fifteen (15)
days after notification in writing by either Party to the other concerning
such dispute, the dispute shall be settled by binding arbitration to be
conducted in Santa Xxxxx County before the American Arbitration Association
under its California Employment Dispute Resolution Rules, or by a judge to be
mutually agreed upon. The arbitration decision shall be final, conclusive and
binding on both Parties and any arbitration award or decision may be entered
in any court having jurisdiction. The Parties agree that the prevailing
party in any arbitration shall be entitled to injunctive relief in any court
of competent jurisdiction to enforce the arbitration award. The Parties
further agree that the prevailing Party in any such proceeding shall be
awarded reasonable attorneys' fees and costs. This Section 16 shall not
apply to the Confidentiality Agreement. THE PARTIES HEREBY WAIVE ANY RIGHTS
THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
17. ENTIRE AGREEMENT. This Agreement, and the exhibit hereto, represent
the entire agreement and understanding between the Company and Xx. Xxxxx
concerning Xx. Xxxxx'x separation from the Company, and supersede and replace
any and all prior agreements and understandings concerning Xx. Xxxxx'x
relationship with the Company and his compensation by the Company, other than
the Stock Option Agreements described in Section 4 and the Confidentiality
Agreement described in Section 10.
18. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Xx. Xxxxx and the Company.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California, without regard to its conflicts of law provisions.
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20. EFFECTIVE DATE. This Agreement is effective seven days after it has
been signed by both Parties and such date is referred to herein as the
"EFFECTIVE DATE."
21. COUNTERPARTS. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of each of the
undersigned.
22. ASSIGNMENT. This Agreement may not be assigned by Xx. Xxxxx or the
Company without the prior written consent of the other party.
Notwithstanding the foregoing, this Agreement may be assigned by the Company
to a corporation controlling, controlled by or under common control with the
Company without the consent of Xx. Xxxxx.
23. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf
of the Parties hereto, with the full intent of releasing all claims. The
Parties acknowledge that:
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) they understand the terms and consequences of this Agreement
and of the releases it contains; and
(d) they are fully aware of the legal and binding effect of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have executed this Agreement and Mutual
Release on the respective dates set forth below.
CENTURA SOFTWARE CORPORATION
Dated as of December 8, 1997 By: /s/ Xxxxxx Xxxxx
------------------------------------
Title: President & Chief Executive Officer
XXXXXX X. XXXXX, an individual
Dated as of December 8, 1997 /s/Xxxxxx Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
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EXHIBIT A
CONFIDENTIALITY AGREEMENT
CENTURA SOFTWARE CORPORATION
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("AGREEMENT") is made by and
between Centura Software Corporation, a California corporation (the "COMPANY"),
and Xxxx X. Xxxxx ("XX. XXXXX").
WHEREAS, Xx. Xxxxx is employed by the Company; and
WHEREAS, the Company and Xx. Xxxxx have mutually agreed to terminate the
existing employment relationship and to release each other from any claims
arising from or related to the employment relationship.
NOW, THEREFORE, in consideration of the mutual promises made herein, the
Company and Xx. Xxxxx (collectively referred to as the "PARTIES") hereby agree
as follows:
1. RESIGNATION. Xx. Xxxxx and the Company agree that Xx. Xxxxx'x status as
Senior Vice President, Engineering and Chief Technical Officer of the Company,
all other positions of the Company held by Xx. Xxxxx, and Xx. Xxxxx'x full-time
employment with the Company shall terminate on December 8, 1997 (the
"Termination Date"), provided, however, that Xx. Xxxxx shall remain a Director
of the Company until Xx. Xxxxx resigns such position or is requested to resign
by the Company's Board of Directors, at which time Xx. Xxxxx agrees to resign
such position.
2. CONTINUATION OF EMPLOYMENT. During the period commencing on December 9,
1997 and continuing thereafter until terminated by the Company or Xx. Xxxxx in
accordance with this Section 2 (the "Service Period"), Xx. Xxxxx agrees to
provide services to the Company as follows:
(i) Xx. Xxxxx shall be available to assist the President, or other
employees of the Company as designated by the President, in fulfilling such
projects reasonably consistent with Xx. Xxxxx'x prior position with the
Company as requested by the President, including without limitation
providing technical product support on SQL Windows and CTD for bug fixes,
architecture changes and other matters;
(ii) Xx. Xxxxx shall report directly to the President of the Company;
and
(iii) Xx. Xxxxx shall contact the President no less frequently than
monthly, at a day and time each month mutually agreed to by Xx. Xxxxx and
the President, to report the status of Xx. Xxxxx'x continuing projects for
the Company.
To facilitate Xx. Xxxxx'x rendering of services to the Company, as set forth
above, during the Service Period, the Company agrees to maintain Xx. Xxxxx'x
electronic mail addresses on the Company's systems, maintain a voice mailbox,
and continue to provide computer equipment as needed. Xx. Xxxxx hereby
acknowledges and agrees that the performance of his services is on an at-will
basis, that his services may be terminated at any time for any reason by the
Company or Xx. Xxxxx upon ten (10) days' written notice, and that upon such
termination the Company's compensation obligations to Xx. Xxxxx under Section 3
below shall terminate.
3. PAYMENT AND LOAN AGREEMENT. In consideration for the release of claims
set forth below and for Xx. Xxxxx'x continued services to the Company during the
Service Period, for each month for which Xx. Xxxxx performs services during the
Service Period, the Company will credit an amount equal to Xx. Xxxxx'x current
monthly base salary (less applicable withholding) first to accrued interest and
then to the outstanding principal balance under the loan pursuant to that
certain Loan Agreement Secured by Property and Securities dated August 31, 1995
by and between the Company and Xxxx and Xxx Xxxxx (the "Loan" and "Loan
Agreement"). Xx. Xxxxx acknowledges that he shall not be entitled to any other
payments from the Company for services performed during the Service Period. The
Parties acknowledge and agree that in accordance with Section 3 of the Note
Secured by Deed of Trust under the Loan
1
Agreement, all outstanding principal balance and accrued interest on the Loan
shall become due and payable in full six (6) months after termination of the
Service Period, or if earlier, upon the occurrence of any of the events
specified in items (i), (ii), (iv), (v) and (vi) of such Section 3. The Parties
agree that the Loan and Loan Agreement shall be unmodified and shall remain in
full force and effect.
4. EMPLOYEE BENEFITS. Following the Termination Date, Xx. Xxxxx shall have
the right to continue, at his own expense, coverage under the Company's medical,
dental and vision insurance programs as provided by COBRA. Except as otherwise
provided above, Xx. Xxxxx shall not be entitled to participate in any of the
Company's benefit plans or programs offered to employees or officers of the
Company.
5. STOCK OPTIONS. Options to purchase the Company's Common Stock held by
Xx. Xxxxx will continue to vest at their regular monthly vesting rate during the
Service Period or so long as Xx. Xxxxx serves as a member of the Board, and such
options shall thereafter be exercisable with respect to such vested option
shares thereunder for 30 days after the later of the date on which Xx. Xxxxx
ceases to provide services to the Company in accordance with Section 2 above or
ceases to serve as a Director of the Company.
Xx. Xxxxx acknowledges and agrees that if the such options are not exercised
within 90 days of the Termination Date, they shall no longer qualify as
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, and shall thereafter be nonstatutory stock
options. Xx. Xxxxx further acknowledges and agrees that he shall remain bound by
all terms of the Stock Option Agreements issued by the Company to him.
6. NO OTHER PAYMENTS DUE. Xx. Xxxxx acknowledges and agrees that the
payments being made to him, and the obligations being undertaken by the Company,
as described in this Agreement, constitute all payments which he is entitled to
receive and that, except as expressly provided herein, he is not entitled to any
further or additional compensation or benefit from the Company. Xx. Xxxxx
acknowledges that, in light of the payment by the Company of all wages due, or
to become due to Xx. Xxxxx, California Labor Code Section 206.5 is not
applicable to the Parties hereto. That section provides in pertinent part as
follows:
No employer shall require the execution of any release of any claim or right
on account of wages due, or to become due, or made as an advance on wages to
be earned, unless payment of such wages has been made.
7. RELEASE OF CLAIMS. In consideration for the obligations of both parties
set forth in this Agreement, Xx. Xxxxx and the Company, on behalf of themselves,
and their respective heirs, executors, officers, directors, employees,
investors, stockholders, administrators and assigns, hereby fully and forever
release each other and their respective heirs, executors, officers, directors,
employees, investors, stockholders, administrators and assigns, of and from any
claim, duty, obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that any of them
may possess arising from any omissions, acts or facts that have occurred up
until and including the date of this Agreement including, without limitation:
(a) any and all claims relating to or arising from Xx. Xxxxx'x
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Xx. Xxxxx'x right
to purchase, or actual purchase of shares of stock of the Company;
(c) any and all claims for wrongful discharge of employment; breach of
contract, both express and implied; breach of a covenant of good faith and
fair dealing, both express and implied, negligent or intentional infliction
of emotional distress; negligent or intentional misrepresentation; negligent
or intentional interference with contract or prospective economic advantage;
negligence; and defamation;
2
(d) any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act
of 1967, the Americans with Disabilities Act of 1990, and the California
Fair Employment and Housing Act;
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Company and Xx. Xxxxx agree that the release set forth in this Section 6
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred or specified under (i) this Agreement, (ii) the Indemnification
Agreement dated , 199 between Xx. Xxxxx and the Company (the
"Indemnification Agreement"), or (iii) attributable to any act of fraud by any
party hereto.
Except as expressly provided herein, this Agreement shall supersede and
render null and void any and all prior agreements between the parties other than
the Indemnification Agreement, Xx. Xxxxx'x options, and the Confidentiality
Agreement as defined in Section 10 hereof.
8. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Xx. Xxxxx acknowledges
that he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Xx. Xxxxx and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Xx. Xxxxx acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Xx. Xxxxx was already entitled. Xx. Xxxxx further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney PRIOR to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the Parties to
revoke the Agreement (the "Revocation Period"); and (d) this Agreement shall not
be effective until the Revocation Period has expired.
9. CIVIL CODE SECTION 1542. The Parties represent that they are not aware
of any claim by either of them other than the claims that are released by this
Agreement. Xx. Xxxxx and the Company acknowledge that they have been advised by
legal counsel and are familiar with the provisions of California Civil Code
Section 1542, which provides 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.
Xx. Xxxxx and the Company, being aware of said Code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
10. NONDISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION. Xx. Xxxxx
understands and agrees that his obligations to the Company under his existing
Proprietary Information and Inventions Assignment and Confidentiality Agreement
between Xx. Xxxxx and the Company (the "CONFIDENTIALITY AGREEMENT"), a copy of
which is attached hereto as EXHIBIT A, shall continue through the Termination
Date and shall survive termination of his relationship with the Company under
this Agreement and that Xx. Xxxxx shall continue to maintain the confidentiality
of all confidential and proprietary information of the Company as provided by
the Confidentiality Agreement. Xx. Xxxxx agrees that at all times hereafter, he
shall not intentionally divulge, furnish or make available to any party any of
the trade secrets, patents, patent applications, price decisions or
determinations, inventions, customers, proprietary information or other
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intellectual property of the Company, until after such time as such information
has become publicly known otherwise than by act of collusion of Xx. Xxxxx.
11. NONCOMPETITION AND NONSOLICITATION. Xx. Xxxxx agrees that through the
Service Period, Xx. Xxxxx shall not, without the prior written consent of the
Company, at any time, directly or indirectly, whether or not for compensation,
engage in, or have any interest in Pervasive Software Company or Sybase
Corporation (whether as an employee, officer, director, agent, security holder,
creditor, consultant, partner or otherwise). Xx. Xxxxx further agrees that
through the Service Period and a period of one year thereafter, Xx. Xxxxx shall
not induce or attempt to induce any person who is an employee of the Company, or
any affiliated company, to leave the Company, or any affiliated company, to
become an employee of any person, firm, corporation or business described above.
It is expressly agreed by the Parties that after the Termination Date Xx. Xxxxx
may pursue and engage in full-time employment that does not conflict with his
obligations under this Section 11 and that such employment shall not constitute
a breach of this Agreement by Xx. Xxxxx.
The Parties intend that the covenant contained in the preceding paragraph
shall be construed as a series of separate covenants, one for each county or
other geographic or political subdivision of each jurisdiction in which the
Company conducts business. If, in any judicial proceeding, a court shall refuse
to enforce any of the separate covenants deemed included in this paragraph, then
the unenforceable covenant shall be deemed eliminated from the provisions for
the purpose of those proceedings to the extent necessary to permit the remaining
separate covenants to be enforced.
12. NON-DISPARAGEMENT. Each Party agrees to refrain from any disparagement,
criticism, defamation, slander of the other, or tortious interference with the
contracts and relationships of the other. The Company's personnel records will
reflect that Xx. Xxxxx voluntarily terminated his employment on the Employment
Termination Date.
13. AUTHORITY. The Company represents and warrants that the undersigned has
the authority to act on behalf of the Company and to bind the Company and all
who may claim through it to the terms and conditions of this Agreement. Xx.
Xxxxx represents and warrants that he has the capacity to act on his own behalf
and on behalf of all who might claim through him, including his spouse, Xxx
Xxxxx, to bind them to the terms and conditions of this Agreement. Each Party
warrants and represents that there are no liens or claims of lien or assignments
in law or equity or otherwise of or against any of the claims or causes of
action released herein.
14. NO REPRESENTATIONS. Neither Party has relied upon any representations
or statements made by the other Party hereto which are not specifically set
forth in this Agreement.
15. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court or other tribunal of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
16. ARBITRATION. The Parties shall attempt to settle all disputes arising
in connection with this Agreement through good faith consultation. In the event
no agreement can be reached on such dispute within fifteen (15) days after
notification in writing by either Party to the other concerning such dispute,
the dispute shall be settled by binding arbitration to be conducted in Santa
Xxxxx County before the American Arbitration Association under its California
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The arbitration decision shall be final, conclusive and binding on both Parties
and any arbitration award or decision may be entered in any court having
jurisdiction. The Parties agree that the prevailing party in any arbitration
shall be entitled to injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. The Parties further agree that the prevailing
Party in any such proceeding shall be awarded reasonable attorneys' fees and
costs. This Section 16 shall not apply to the Confidentiality Agreement. THE
PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO
ARBITRABLE CLAIMS.
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17. ENTIRE AGREEMENT. This Agreement, and the exhibit hereto, represent the
entire agreement and understanding between the Company and Xx. Xxxxx concerning
Xx. Xxxxx'x separation from the Company, and supersede and replace any and all
prior agreements and understandings concerning Xx. Xxxxx'x relationship with the
Company and his compensation by the Company, other than the Loan and Loan
Agreement described in Section 2, the Confidentiality Agreement described in
Section 10, and the Option Agreements between the Company and Xx. Xxxxx, which
agreements shall remain in full force and effect.
18. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Xx. Xxxxx and the Company.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California, without regard to its conflicts of law provisions.
20. EFFECTIVE DATE. This Agreement is effective seven days after it has
been signed by both Parties and such date is referred to herein as the
"EFFECTIVE DATE."
21. COUNTERPARTS. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
22. ASSIGNMENT. This Agreement may not be assigned by Xx. Xxxxx or the
Company without the prior written consent of the other party. Notwithstanding
the foregoing, this Agreement may be assigned by the Company to a corporation
controlling, controlled by or under common control with the Company without the
consent of Xx. Xxxxx.
23. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that
they have voluntarily declined to seek such counsel;
(c) they understand the terms and consequences of this Agreement and of
the releases it contains; and
(d) they are fully aware of the legal and binding effect of this
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement and Mutual
Release on the respective dates set forth below.
CENTURA SOFTWARE CORPORATION
Dated as of December , 1997 By:/s/ Xxxxxx Xxxxx
Title: President & Chief Executive Officer
XXXX X. XXXXX, an individual
Dated as of December 8, 1997 /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
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EXHIBIT A
CONFIDENTIALITY AGREEMENT
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