Exhibit 10.1
March 22, 2005
VIA FEDERAL EXPRESS
PERSONAL AND CONFIDENTIAL
Xx. Xxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Re: Separation Agreement and Release
Dear Xxxx:
As we have discussed with you, your Employment Agreement dated January 2, 1997
(your "Employment Agreement") and your employment with CorVu Corporation
("CorVu") terminated effective today, March 22, 2005, pursuant to Section 5.1(a)
of your Employment Agreement. The purpose of this Separation Agreement and
Release letter ("Agreement") is to set forth the agreement of the parties and
the specific separation pay that CorVu will provide you in exchange for your
agreement to the terms and conditions of this Agreement.
By your signature below, you agree to the following terms and conditions:
1. End of Employment. Your employment with CorVu ended effective at the
close of business today, March 22, 2005. CorVu will pay you through March 31,
2005. Upon your receipt of your final paycheck which includes payment through
March 31, 2005, you will have received all wages owed to you by virtue of your
employment with CorVu or termination thereof. You have also received all
benefits owed to you by virtue of your employment with CorVu or termination
thereof. You are not eligible for any other payments or benefits except for
those expressly described in this Agreement, provided that you sign and do not
rescind this Agreement. CorVu will provide information to you regarding your
COBRA rights under separate cover. The COBRA period for continuation of your
insurance coverage under CorVu's group plans begins on April 1, 2005. You will
have 90 days from your termination date to exercise your vested stock options
per the terms of the stock option agreements.
2. Separation Pay. Specifically in consideration of your signing this
Agreement and subject to the limitations, obligations, and other provisions
contained in this Agreement, CorVu agrees:
a. To pay you Ninety Thousand and 00/100 Dollars ($90,000), less
applicable withholding, which is the equivalent of six months of your base
salary, to be paid in a lump sum within ten (10) business days after the
expiration of the rescission period described in Section 5 below; and
b. As additional consideration for the release of claims contained
in Paragraph 3 below and the services you have agreed to provide in Paragraph 9
below, to pay you an additional $15,000, less applicable withholding, to be paid
in a lump sum within ten (10) business days following your completion of the
project outlined in Paragraph 9 below (completion will be determined by Xxxxxx
XxxXxxxxx).
3. Release of Claims. Specifically in consideration of the separation pay
described in Section 2, by signing this Agreement you, for yourself and anyone
who has or obtains legal rights or claims through you, agree to the following:
a. You hereby do release, agree not to xxx, and forever discharge
CorVu (as defined below) of and from any and all manner of claims, demands,
actions, causes of action, administrative claims, liability, damages, claims for
punitive or liquidated damages, claims for attorney's fees, costs and
disbursements, individual or class action claims, or demands of any kind
whatsoever, you have or might have against them or any of them, whether known or
unknown, in law or equity, contract or tort, arising out of or in connection
with your employment with CorVu, or the termination of that employment, or
otherwise, and however originating or existing, from the beginning of time
through the date of your signing this Agreement.
b. This release includes, without limiting the generality of the
foregoing, any claims you may have for wages, bonuses, commissions, penalties,
compensation, deferred compensation, vacation pay, paid time off, separation pay
or benefits, defamation, invasion of privacy, negligence, emotional distress,
breach of contract, including but not limited to you Employment Agreement,
estoppel, improper discharge (based on contract, common law, or statute,
including any federal, state or local statute or ordinance prohibiting
discrimination or retaliation in employment), violation of the United States
Constitution, the Georgia Constitution, the Age Discrimination in Employment
Act, 29 U.S.C. ss. 621 et seq., the Georgia Fair Employment Practices Act, the
GeorgiA Equal Employment for Persons with Disabilities Code, Ga. Code Xxx.
xx.xx. 34-6A-1 et. seq.; the Georgia Age Discrimination Act, Ga. Code Xxx. ss.
34-1-2; the Georgia Equal Pay Act., Ga. Code Xxx. xx.xx. 34-5-1 et. seq.; TiTle
VII of the Civil Rights Act, 42 U.S.C. ss. 2000e et seq., the Americans with
Disabilities Act, 42 U.S.C. ss. 12101 et seq., the Employee Retirement Income
Security Act of 1976, 29 U.S.C. ss. 1001 et seq., the Family and Medical Leave
Act, 29 U.S.C. ss. 2601 et seq., the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. 210l, et seq., any claim arising under Georgia
Statutes, and any claim for retaliation, harassment or discrimination based on
sex, race, color, creed, religion, age, national origin, disability, or any
other protected class, or sexual or other harassment. You hereby waive any and
all relief not provided for in this Agreement. You understand and agree that, by
signing this Agreement, you waive and release any past, present, or future claim
to employment with CorVu.
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c. You affirm that you have not caused or permitted, and to the full
extent permitted by law will not cause or permit to be filed, any charge,
complaint, or action of any nature or type against CorVu, including but not
limited to any action or proceeding raising claims arising in tort or contract,
or any claims arising under federal, state, or local laws, including
discrimination laws. If you file, or have filed on your behalf, a charge,
complaint, or action, you agree that the payments described above in Section 2
are in complete satisfaction of any and all claims in connection with such
charge, complaint, or action and you waive, and agree not to take, any award of
money or other damages from such charge, complaint, or action.
d. You are not, by signing this Agreement, releasing or waiving (1)
any vested interest you may have in any 401(k) or profit sharing plan by virtue
of your employment with CorVu, (2) any rights or claims that may arise after the
Agreement is signed, (3) the post-employment benefits and payments specifically
promised to you under this Agreement, or (4) the right to institute legal action
for the purpose of enforcing the provisions of this Agreement.
e. CorVu, as used in this Section 3, shall mean CorVu Corporation
and its parent, subsidiaries, divisions, affiliated entities, insurers, if any,
and its and their present and former officers, directors, shareholders,
trustees, employees, agents, attorneys, representatives and consultants, and the
successors and assigns of each, whether in their individual or official
capacities, and the current and former trustees or administrators of any pension
or other benefit plan applicable to the employees or former employees of CorVu,
in their official and individual capacities.
4. Notice of Right to Consult Attorney and Twenty-One (21) Day
Consideration Period. By signing this Agreement, you acknowledge and agree that
CorVu has informed you by this Agreement that (1) you have the right to consult
with an attorney of your choice prior to signing this Agreement, and (2) you are
entitled to twenty-one (21) days from the receipt of this Agreement to consider
whether the terms are acceptable to you. CorVu encourages you to use the full
21-day period to consider this Agreement but you have the right, if you choose,
to sign this Agreement prior to the expiration of the twenty-one (21) day
period.
5. Notification of Rights under the Federal Age Discrimination in
Employment Act (29 U.S.C. ss. 621 et seq.). You are hereby notified of your
right to rescind the release of claims contained in Section 3 with regard to
claims arising under the federal Age Discrimination in Employment Act, 29 U.S.C.
ss. 621 et seq., within seven (7) calendar days of your signing this Agreement.
In order to be effective, the rescission must (a) be in writing; (b) delivered
to Xxxx Xxxxxxx, Chief Financial Officer, CorVu Corporation, 0000 Xxxx 00xx
Xxxxxx, Xxxxx 000, Xxxxx, XX 00000 by hand or mail within the required period;
and (c) if delivered by mail, the rescission must be postmarked within the
required period, properly addressed to Xxxx Xxxxxxx, as set forth above, and
sent by certified mail, return receipt requested. This Agreement will be
effective upon the expiration of the 7-day period without rescission. You
understand that if you rescind any part of this Agreement in accordance with
this Section 5, you will not receive the separation pay outlined in Section 2
and you will be obligated to return any such payments if already received.
6. Non-competition. Pursuant to Section 5.2(a) of your Employment
Agreement, you reaffirm your contractual obligation not to accept a position
with another company considered to be in a similar field or business as that of
CorVu for a period of six months following your termination. You understand and
agree that if you breach this obligation you will not receive the separation pay
outlined in Section 2 and you will be obligated to return any such payments if
already received.
7. Return of Property. By signing this Agreement, you acknowledge and
agree that all documents and materials relating to the business of, or the
services provided by, CorVu are the sole property of CorVu. By signing this
Agreement you further agree and represent that you have returned to CorVu all of
its property, including but not limited to, all customer records and other
documents and materials, whether on computer disc, hard drive or other form, and
all copies thereof, within your possession or control, which in any manner
relate to the business of, or the duties and services you performed on behalf of
CorVu.
8. Confidential and Proprietary Information. By signing this Agreement,
you acknowledge and agree that you have had access in your employment with CorVu
to confidential and proprietary information of CorVu and further acknowledge and
agree that the release or disclosure of any confidential or proprietary
information of CorVu will cause CorVu irreparable injury. By signing this
Agreement, you acknowledge that you have not used or disclosed, and agree that
you will not at any time use or disclose, to any other entity or person,
directly or indirectly, any confidential or proprietary information of CorVu.
For purposes of this Agreement, the term "confidential or proprietary
information" shall include, but not be limited to, customer lists and
information pertaining to customer lists; contact lists; and information about
the personal or business affairs of CorVu's customers, vendors, or employees.
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9. On-Going Assistance. You agree that you will complete a final project
identified by Xxxxxx XxxXxxxxx to identify a short listed product for Work Flow
processing to resell within approximately 6 weeks following your termination.
You agree that your compensation for such services is included in the separation
pay outlined in Section 2(b) of this Agreement.
10. Confidentiality. You promise and agree not to disparage CorVu, its
executives, employees, products or services, or disclose or discuss, directly or
indirectly, in any manner whatsoever, any information regarding either (1) the
contents and terms of this Agreement, or (2) the substance and/or nature of any
dispute between CorVu and any employee or former employee, including yourself.
You agree that the only people with whom you may discuss this confidential
information are your legal and financial advisors and your spouse, if
applicable, provided they agree to keep the information confidential, or as
otherwise required by law.
11. Remedies. If you breach any term of this Agreement, CorVu shall be
entitled to its available legal and equitable remedies, including but not
limited to suspending and recovering any and all payments and benefits made or
to be made under this Agreement. If CorVu seeks and/or obtains relief from an
alleged breach of this Agreement, all of the provisions of this Agreement shall
remain in full force and effect.
12. Non-Admission. It is expressly understood that this Agreement does not
constitute, nor shall it be construed as, an admission by CorVu or you of any
liability or unlawful conduct whatsoever. CorVu and you specifically deny any
liability or unlawful conduct.
13. Successors and Assigns. This Agreement is personal to you and may not
be assigned by you without the written agreement of CorVu. The rights and
obligations of this Agreement shall inure to the successors and assigns of
CorVu.
14. Enforceability. If a court finds any term of this Agreement to be
invalid, unenforceable, or void, the parties agree that the court shall modify
such term to make it enforceable to the maximum extent possible. If the term
cannot be modified, the parties agree that the term shall be severed and all
other terms of this Agreement shall remain in effect.
15. Law Governing. This Agreement shall be governed and construed in
accordance with the laws of the State of Georgia.
16. Full Agreement. This Agreement contains the full agreement between you
and CorVu and may not be modified, altered, or changed in any way except by
written agreement signed by both parties. The parties agree that this Agreement
supersedes and terminates any and all other written and oral agreements and
understandings between the parties, except for Sections 5.2(a) and 5.4, and
Articles 6 - 11 of your Employment Agreement with CorVu which shall remain in
full force and effect.
The offer contained in this Agreement will expire at 5:00 p.m. on April
14, 2005. After you have reviewed this Agreement and obtained whatever advice
and counsel you consider appropriate regarding it, please evidence your
agreement to the provisions set forth in this Agreement by dating and signing
the Agreement. Please then return the signed Agreement to me no later than 5:00
p.m. on April 14, 2005.
Sincerely,
CORVU CORPORATION
Xxxxx X. Xxxxxxx
Chief Financial Officer
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ACKNOWLEDGMENT AND SIGNATURE
By signing below, I, Xxxx X. Xxxxxxxx, Xx., acknowledge and agree to the
following:
o I have had adequate time to consider whether to sign this Separation
Agreement and Release.
o I have read this Separation Agreement and Release carefully.
o I understand and agree to all of the terms of the Separation Agreement and
Release.
o I am knowingly and voluntarily releasing my claims against CorVu.
o I have not, in signing this Agreement, relied upon any statements or
explanations made by CorVu except as for those specifically set forth in
this Separation Agreement and Release.
o I intend this Separation Agreement and Release to be legally binding.
o I am signing this Separation Agreement and Release on or after my last day
of employment with CorVu.
Accepted this 24th day of March, 2005.
/s/ Xxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxx X. Xxxxxxxx, Xx.
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