EXHIBIT 10.18
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (the "Agreement") is made and entered into
by and between Xxxxx Xxxxxxx ("Xx. Xxxxxxx") and Xxxxx Software, Inc., a
Delaware Corporation (the "Company"), as of the date that this Agreement is
executed (the "Effective Date").
In consideration of the mutual promises and covenants contained herein,
it is hereby agreed by and between the parties hereto as follows:
1. RESIGNATION OF EMPLOYMENT. The parties agree that Xx. Xxxxxxx
has tendered his resignation and his employment with the Company shall terminate
effective July 24, 1998 ("Separation Date").
2. ACCRUED SALARY AND PAID TIME OFF. Except as specifically
provided in Section 5 below, Xx. Xxxxxxx acknowledges that the Company has paid
to him all accrued salary, all accrued retroactive pay, all earned bonuses and
commissions and all unused and accrued vacation earned prior to the Separation
Date and reimbursed to him all Employee Stock Purchase Plan contributions made
prior to the Separation Date, subject to tax withholdings as required by law.
In addition, Xx. Xxxxxxx acknowledges receipt of all compensation due him under
any stock option plans of the Company.
3. EXPENSE REIMBURSEMENTS. The Company will reimburse Xx. Xxxxxxx
for all reasonable business expenses incurred through the Separation Date. Such
expenses will be submitted within one week from the Separation Date and
reimbursed by the Company within 10 working days.
4. HEALTH COVERAGE. Xx. Xxxxxxx acknowledges that all insurance
benefits provided by the Company cease on the Separation Date. Xx. Xxxxxxx
further acknowledges that he is aware that he is eligible, to the extent
permitted by law and by the Company's group health insurance policies, upon
termination of his employment, to continue his health insurance benefits under
the federal COBRA law at his own expense (except as provided below) and, later,
to convert to an individual policy if he wishes.
5. ADDITIONAL PAYMENTS AND OPTION VESTING.
a. The Company agrees to make the following payments, subject to
tax withholding as required by law, to Xx. Xxxxxxx:
i) Company shall pay Xx. Xxxxxxx eighty thousand dollars
($80,000) on the Effective Date of this Agreement; and
ii) if both Xxx XxXxxxxx and Xxxxx Xxxxxx remain employees
of the
1
Company through the 3 month period following the Effective Date of this
Agreement, Company shall pay Xx. Xxxxxxx an additional forty-five thousand
dollars ($45,000) ("Second Payment") within 30 days of such 3 month period. If,
however, both of Messrs. XxXxxxxx and Xxxxxx do not remain Company employees for
such 3 month period, the Second Payment is payable only if the Company
determines, in its reasonable discretion, that Xx. Xxxxxxx made every possible
effort to secure their retention.
iii) Company will reimburse Xx. Xxxxxxx for his
COBRA-related health insurance benefit payments until the first to occur of
(A) six months from the Separation Date; or (B) Xx. Xxxxxxx'x coverage under
another health plan in connection with his employment with or retention by
another company.
b. The Company agrees to pay Xx. Xxxxxxx any bonus or commissions
earned for the first quarter of fiscal year 1999, under the compensation plan in
effect as of the Separation Date, within a reasonable time after calculation of
same by Company.
c. The Company agrees that Xx. Xxxxxxx'x two January 20, 1997
option grants and his July 15, 1998 option grant under the Company's 1996 Stock
Option Plan ("Option Plan") shall continue vesting for 3 months from the
Separation Date and, thereafter, shall terminate in accordance with the Option
Plan. Other than as provided in the preceding sentence, no further vesting
shall occur under any of Xx. Xxxxxxx'x stock options following the Separation
Date and such options shall terminate in accordance with their terms.
d. Xx. Xxxxxxx acknowledges and agrees that the Company has made
no representations to him regarding the tax consequences of any amounts received
by him pursuant to this Agreement. Xx. Xxxxxxx agrees to pay federal or state
taxes which are required by law to be paid with respect to this Agreement.
6. OTHER COMPENSATION OR BENEFITS. Xx. Xxxxxxx acknowledges that,
except as provided herein, he will not receive any additional compensation or
benefits from the Company after the Separation Date.
7. FURTHER ASSISTANCE TO THE COMPANY. As further consideration for
the payments and promises of the Company described herein, until August 15,
1998, Xx. Xxxxxxx agrees to act as a consultant to Forte by, INTER ALIA, fully
assisting the Company, upon request, in: a) the completion of licensing deals
with Forte customers with which Xx. Xxxxxxx was or is familiar; b) in completing
the planned reorganization of the North American Sales organization.
8. COMPANY PROPERTY. Xx. Xxxxxxx represents and warrants to the
Company that as of the Effective Date of this Agreement, he will have returned
to the Company all Company documents (and all copies thereof) and other Company
property which he has had in his possession at any time, including, but not
limited to: Company files, notes, records, computer-recorded information,
financial information, business plans and forecasts, computers, telephones or
other equipment, tangible property, credit cards, entry cards, and keys.
9. PROPRIETARY INFORMATION OBLIGATIONS. Nothing in this Agreement
shall be construed to terminate or in any way diminish the obligations of Xx.
Xxxxxxx to the Company pursuant to
2
his written Proprietary Information and Inventions Agreement, effective as of
the commencement of his employment with the Company. Xx. Xxxxxxx acknowledges
that he continues to be bound by the terms of that Agreement.
10. RELEASE OF CLAIMS.
a. Except as otherwise set forth in this Agreement, Xx. Xxxxxxx hereby
releases, acquits and forever discharges the Company, its officers, directors
and employees of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations of
every kind and nature, in law, equity or otherwise, known and unknown, suspected
and unsuspected, disclosed and undisclosed, arising out of or in any way
connected with the Company's employment of Xx. Xxxxxxx or the termination of
that employment, including without limitation all wrongful discharge actions;
all actions arising under the Americans with Disabilities Act, Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
California Fair Employment and Housing Act, ERISA or any similar statute in
effect in any other state which may be held applicable; all actions for breach
of contract or the covenant of good faith and fair dealing; all actions based in
tort or contract law; and any and all claims for compensation, wages, bonuses,
severance pay, stock options, commissions, vacation pay, or reimbursement for
expenses, attorney's fees and costs. It is expressly understood by Xx. Xxxxxxx
that among the various rights and claims being waived in this release are those
arising under the Age Discrimination in Employment Act of 1967 (29 U.S.C.
Section 621. et seq.).
b. Xx. Xxxxxxx agrees that the Company's obligations under
this Agreement shall constitute an accord and satisfaction and a full and
complete settlement of his claims, shall constitute the entire amount of
monetary consideration provided to him under this Agreement, and that he will
not seek any further compensation for any other claimed damage, costs or
attorneys' fees in connection with the matters encompassed in this Agreement
unless in connection with the Company's breach of this Agreement.
c. Xx. Xxxxxxx represents that he has not filed any complaint,
claims or actions against the Company, its officers, agents, directors,
supervisors, employees or representatives with any state, federal or local
agency or court and that he will not do so at any time hereafter unless arising
from the Company's breach of this Agreement. Xx. Xxxxxxx will not file,
commence, voluntarily aid in any way, prosecute or cause to be filed, commenced
or prosecuted against the Company any action or proceeding arising from any
claims released by this Agreement.
d. Xx. Xxxxxxx hereby relinquishes any employment rights he
might have with the Company.
11. SECTION 1542 WAIVER. Xx. Xxxxxxx acknowledges that he has read
and understands Section 1542 of the Civil Code of the State of California 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.
3
Xx. Xxxxxxx hereby expressly waives and relinquishes all rights and benefits
under that section and any law or legal principle of similar effect in any
jurisdiction with respect to the release granted in this Agreement, included but
not limited to any jurisdiction in the United States.
12. NON-SOLICITATION. For a period of one (1) year following the
Effective Date of this Agreement, Xx. Xxxxxxx shall not directly or indirectly,
for himself or any other business, solicit or recommend solicitation of the
services or otherwise hire anyone employed by the Company while Xx. Xxxxxxx was
employed by the Company or employed by the Company during the period of one (1)
year following the Effective Date of this Agreement. Should this provision be
violated, in addition to any other remedies available to the Company, the
Company will be entitled to a full refund of the amounts paid by Company under
paragraph 5 of this Agreement.
13. CONFIDENTIALITY. Xx. Xxxxxxx shall keep the terms (including
payments to Xx. Xxxxxxx related to Company's retention of Messrs. XxXxxxxx
and Xxxxxx) and monetary settlement amount of this Agreement completely
confidential, and shall not disclose such to any other person directly or
indirectly. As an exception to the foregoing Xx. Xxxxxxx may disclose the
terms and monetary settlement amount of this Agreement to his attorney, tax
advisor, accountant and immediate family (defined as and limited to spouse
and children) who shall be advised of its confidentiality. Should any of the
foregoing individuals disclose the terms and/or monetary settlement amount of
this Agreement to any other person, such shall be considered an indirect
disclosure in breach of this provision for which Xx. Xxxxxxx shall be liable.
Xx. Xxxxxxx represents and warrants that as of the Effective Date of
this Agreement, he has not disclosed any term of this Agreement to any third
party in violation of this Section
14. DISPARAGING COMMENTS. Xx. Xxxxxxx and his immediate family
(defined as and limited to spouse and children) shall not make negative or
disparaging comments about the Company, its officers or employees, to any
current or prospective employees, suppliers, customers or investors of the
Company. The Company and its officers, directors and agents shall not make
negative or disparaging comments about Xx. Xxxxxxx to any current or
prospective employer, employees, suppliers, or customers of Xx. Xxxxxxx. The
Company will respond to requests for information about Xx. Xxxxxxx'x employment
and the end of such employment only with his dates of service and positions
held.
15. REFUND. If the Company has a reasonable belief that Section(s)
12, 13 and/or 14 have been violated, in addition to any other remedies available
to the Company, the Company will be relieved of all obligations and/or
continuing obligations to Xx. Xxxxxxx created by Section 5 of this Agreement and
entitled to a refund of all payments made hereunder.
16. NO ADMISSION. This Agreement and compliance with this Agreement
shall not be construed as an admission by any party of any liability whatsoever,
or as admission by any party of any violation of the rights of any person,
violation of any order, law, statute, duty or contract whatsoever. The Company
specifically disclaims any liability to Xx. Xxxxxxx for any alleged violation
of the rights of Xx. Xxxxxxx, or for any alleged violation of any order, law,
statute,
4
duty or contract whatsoever.
17. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and upon their heirs, administrators, representatives, executors,
successors, and assigns, and shall inure to the benefit of said parties and each
of them and to their heirs, administrators, representatives, executors,
successors, and assigns. Xx. Xxxxxxx expressly warrants that he has not
transferred to any person or entity any rights or causes of action, or claims
released by this Agreement.
18. APPLICABLE LAW. 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.
19. ENTIRE AGREEMENT. This Agreement constitutes the complete, final
and exclusive agreement between the parties with respect to the subject matter
hereof. This Agreement is executed without reliance upon any promise, warranty
or representation, written or oral, by any party or any representative of any
party other than those expressly contained herein. Each party has carefully
read this Agreement, has been afforded the opportunity to be advised of its
meaning and consequences by his or its respective attorney. This Agreement
cannot be modified except in a writing signed by both Xx. Xxxxxxx and a duly
authorized officer of the Company.
20. SEVERABILITY. If any provision of this Agreement is determined to
be invalid or unenforceable by a court of law, in whole or in part, this
determination will not affect any other provision of this Agreement.
21. ACCEPTANCE.
a. Xx. Xxxxxxx has up to forty-five (45) days from his initial
receipt of this Agreement to accept the terms of this Agreement, although Xx.
Xxxxxxx may accept it at any time within those 45 days. Xx. Xxxxxxx is advised
to consult an attorney about this Agreement.
b. To effectively accept this Agreement, Xx. Xxxxxxx must date, sign
and return two originals of this Agreement to the Company's Vice President of
Human Resources. Following such acceptance, Xx. Xxxxxxx shall have an
additional seven (7) days in which to revoke such acceptance. To revoke, Xx.
Xxxxxxx must send to the Company's Vice President of Human Resources a
written statement of revocation. If Xx. Xxxxxxx does not revoke, the eighth
(8th) day after Xx. Xxxxxxx'x acceptance shall be the "Effective Date" of
this Agreement.
c. Xx. Xxxxxxx warrants that he has read and fully understands this
Agreement; that he has had the opportunity to consult with and has in fact
consulted with legal counsel of his own choosing and had the terms of this
Agreement fully explained to him; that he is not executing this Agreement in
reliance on any promises, representations or inducements other than those
contained herein; and that he is executing this Agreement voluntarily, free
of any duress or coercion.
The parties have duly authorized and caused this Agreement to be executed
as follows:
5
