Exhibit 10.42
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made and
entered into this 1st day of September, 1999 by and between Object Design, Inc.,
a Delaware Corporation ("ODI"), and Xxxxxx X. Xxxxxxxxx, an individual residing
at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Xxxxxxxxx").
W I T N E S S E T H T H A T:
WHEREAS, ODI has employed Xxxxxxxxx most recently as President and Chief
Executive Officer; and
WHEREAS, ODI and Xxxxxxxxx wish to set forth the terms of the termination of
Xxxxxxxxx'x employment with ODI;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, ODI and Xxxxxxxxx hereby agree as follows:
1. Xxxxxxxxx hereby agrees to resign as President and Chief Executive
Officer of ODI, effective as of September 30, 1999. At the request of ODI,
Xxxxxxxxx will execute and deliver to ODI a separate instrument embodying such
resignation.
2. ODI agrees to pay Xxxxxxxxx an amount of $210,000, less applicable
deductions, and ODI shall provide Xxxxxxxxx with medical and dental insurance
coverage on the same basis as if he were still employed by ODI, less Xxxxxxxxx'x
applicable contribution, for a period of twelve (12) months following the
effective date of termination; provided, however, that if Xxxxxxxxx becomes
re-employed with another employer and is eligible to receive such insurance
coverage under another employer-provided plan, ODI's contributions toward the
insurance coverage set forth herein shall terminate immediately unless Xxxxxxxxx
elects to continue such coverage, at Xxxxxxxxx'x sole expense. Notwithstanding
and in replacement of the foregoing, in the event that ODI reaches a definitive
agreement, prior to September 30, 1999, to be acquired, and further conditioned
upon the final consummation of such acquisition, ODI agrees to pay Xxxxxxxxx an
amount of $669,999.84, less applicable deductions, and ODI shall provide
Xxxxxxxxx with medical and dental insurance coverage on the same basis as if he
were still employed by ODI, less Xxxxxxxxx'x applicable contribution, for a
period of twenty-four (24) months following the effective date of termination;
provided, however, that if Xxxxxxxxx becomes re-employed with another employer
and is eligible to receive such insurance coverage under another
employer-provided plan, ODI's contributions toward the insurance coverage set
forth herein shall terminate immediately unless Xxxxxxxxx elects to continue
such coverage, at Xxxxxxxxx'x sole expense.
3. ODI hereby forgives any and all outstanding debt of principal and
interest under the promissory note of Xxxxxxxxx to ODI in 1996 (the "Note") that
was delivered by Xxxxxxxxx in connection with the exercise by Xxxxxxxxx of stock
options granted to him under ODI's 1995 Nonqualified Stock Option Plan to
purchase 460,000 shares of Common Stock of ODI (the "Loan"). ODI hereby releases
to Xxxxxxxxx the 50,210 shares remaining pledged to secure the outstanding
amount of principal and interest of the Loan. Xxxxxxxxx hereby acknowledges and
agrees that ODI's forgiveness of such debt is taxable compensation to Xxxxxxxxx.
ODI will reimburse Xxxxxxxxx in the amount of $66,061.75 for federal and state
taxes arising from the forgiveness of such indebtedness.
4. ODI agrees that Xxxxxxxxx may retain the personal computer and
mobile telephone provided to him during his employment with ODI, provided that
Xxxxxxxxx agrees and acknowledges by his signature below that (i) all
Confidential Information and material belonging to ODI, including without
limitation all software, documentation, records, forms, customer lists and data,
has been removed and deleted from such computer; (ii) Xxxxxxxxx has ceased any
and all utilization of such Confidential Information and material; and (iii) no
copies of such Confidential Information and material have been made. In
addition, ODI agrees to provide Xxxxxxxxx with voice-mail and e-mail facilities
for a period of three (3) months following the effective date of termination.
5. All options which have heretofore been granted to Xxxxxxxxx under
ODI's 1996 Stock Incentive and Nonqualified Stock Option Plan, 1995 Nonqualified
Stock Option Plan, 1989 Stock Incentive and Nonqualified Stock Option Plan,
and/or 1996 Employee Stock Purchase Plan (the "Options") shall be exercisable,
and expire, in accordance with their terms in effect as of the date of this
Agreement.
6. Xxxxxxxxx hereby acknowledges and ratifies his obligations under the
NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,
dated February 23, 1999 between Xxxxxxxxx and ODI, a copy of which is attached
hereto and incorporated herein by reference, and Xxxxxxxxx further agrees to be
bound by the terms thereof.
7. Xxxxxxxxx, for good and valuable consideration the receipt of which
is hereby acknowledged, for himself and his legal representatives, successors,
and assigns hereby releases, remises, and forever discharges ODI, its
subsidiaries and affiliates, and their respective past, present and future
agents, officers, directors, shareholders, attorneys, employees, servants, and
representatives and all of ODI's successors, predecessors, and assigns, of and
from all manner of actions, causes of actions, suits, debts, demands, damages,
costs, expenses, attorneys' fees, obligations, agreements, and claims
whatsoever, at law, in equity, or otherwise, known or unknown, which Xxxxxxxxx
has or may have, either now or at any time before the date of this Agreement,
against ODI, including but not limited to any claims arising out of or in any
way related to Xxxxxxxxx'x employment by ODI, Xxxxxxxxx'x resignation as
President and Chief Executive Officer of ODI, and/or the termination of
Xxxxxxxxx'x employment by ODI; provided, however, that any claims that Xxxxxxxxx
may make against ODI for breach of this Agreement are specifically exempted from
this release. Xxxxxxxxx acknowledges and agrees that the payments and benefits
to be made to Xxxxxxxxx pursuant to this Agreement are over and above any other
money or benefits that would be due to Xxxxxxxxx under the terms of his
employment with ODI and ODI's usual policies and practices.
8. Xxxxxxxxx and ODI hereby agree to be publicly supportive of each
other. Xxxxxxxxx agrees not to criticize, disparage or otherwise comment
negatively about, orally or in writing, directly or indirectly, ODI, its
subsidiaries, affiliates or any of their respective past, present or future
officers, directors, employees, agents, businesses, products or services.
Xxxxxxxxx agrees to use his best efforts to ensure that none of the members of
his family so criticize or disparage any of such persons or entities. Xxxxxxxxx
further agrees that he shall be publicly and privately cooperative and
supportive of ODI in regard to its personnel, corporate practices and policies
and other matters. ODI agrees not to disparage or make negative statements about
Xxxxxxxxx and to be publicly and privately cooperative and supportive of
Xxxxxxxxx in regard to his transition.
9. Xxxxxxxxx agrees that, except as may be required by law or as may be
mutually agreed, Xxxxxxxxx will keep the terms and existence of this Agreement
completely and strictly confidential, and that Xxxxxxxxx will not hereafter
disclose any information concerning this Agreement to anyone, except to the
extent necessary to enforce this Agreement.
10. With the exception of the personal computer set forth above,
Xxxxxxxxx agrees to return any and all property, whether tangible or intangible,
provided to Xxxxxxxxx by ODI, as a condition precedent to ODI's obligations
hereunder.
11. This Agreement and the NON-COMPETITION, NON-SOLICITATION,
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, attached hereto, embodies the entire
understanding and agreement between the parties, and supersedes all other oral
or written agreements or understandings between the parties regarding the
subject matter hereof, including without limitation any terms and conditions of
any employment agreement or other similar agreement(s), and it shall be binding
and inure to the benefit of the successors and assigns of each. No change,
alteration or modification hereof may be made except in a writing signed by both
parties hereto. This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts (disregarding any choice of law rules which may
look to the laws of any other jurisdiction).
12. The parties represent and acknowledge that in executing this
Agreement they do not rely and have not relied upon any other representation or
statement made by any person or entity with regard to the subject matter, basis,
or effect of this Agreement, with the sole exception of the provisions set forth
herein. Mistakes of fact or law shall not constitute grounds for modification,
avoidance or rescission of the terms and conditions of this Agreement. The fact
that a party or counsel for a party drafted a provision or provisions of this
Agreement shall not cause that provision or those provisions to be construed
against the drafting party.
13. This Agreement may be executed in one or more counterparts, each of
which when so executed shall be deemed an original, but all of which together
shall constitute one and the same instrument.
14. In entering into this Agreement, the parties represent that they
have had the opportunity to seek the advice of legal counsel and that the terms
of the Agreement have been completely read and explained to them and that those
terms are fully understood and voluntarily agreed to.
ODI: Xxxxxxxxx:
Object Design, Inc. Xxxxxx X. Xxxxxxxxx
By:_____________________________ By:___________________________
Name:___________________________ Name:_________________________
(Printed or Typed) (Printed or Typed)
Title:__________________________
