May 1, 2008 Derek Witte Chordiant Software, Inc. 20400 Stevens Creek Blvd. Cupertino, CA 95014 Dear Derek:
Exhibit
10.71
May
1, 2008
Xxxxx
Xxxxx
Chordiant
Software, Inc.
00000
Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx,
XX 00000
Dear
Xxxxx:
This
letter sets forth the substance of the separation agreement (the “Agreement”)
that Chordiant Software, Inc. (the “Company”) is offering to you to aid in your
employment transition.
1. Separation
Date. Your last day of work with the Company and your
employment termination date will be June 30, 2008 (the “Separation
Date”). This means that as of the Separation Date, you will be deemed
to have resigned from any and all positions that you hold with the Company or
any of its subsidiaries, including any Board positions. On the
Separation Date, the Company will pay you all accrued salary, and all accrued
and unused vacation earned through the Separation Date, subject to standard
payroll deductions and withholdings. You are entitled to these
payments regardless of whether or not you sign this Agreement.
2. Transition
Period.
a. Hours/Duties. Between
now and the Separation Date (the “Transition Period”), you will remain a
regular, full-time employee of the Company, with the same title currently in
effect, and shall be required to perform those duties requested of you by the
CEO.
b. Compensation/Benefits. During
the Transition Period, your salary will remain the same, your Company stock
options will continue to vest, and you will continue to be eligible for the
Company’s standard benefit programs (subject to their terms and
conditions).
c. Obligations During Transition
Period. During the Transition Period, you will continue to
comply with all of the Company’s policies and procedures and with all of your
statutory and contractual obligations to the Company (including, without
limitation, your obligations under your Proprietary Information and Inventions
Agreement).
3. Severance
Payments. Although the
Company has no obligation to do so, if you sign the Separation Date Release
Agreement attached hereto as Exhibit A on or within forty-five (45) days after
the Separation Date, return it to the Company, and allow the release contained
therein to become effective, then the Company will make the following severance
payments to you:
a. Salary
Continuation. The Company will pay you severance in the form
of salary continuation for a four (4) month period following the Separation Date
(the “Severance Payments”). The Severance Payments will be made on
the Company’s regular payroll cycle beginning on the first regularly-scheduled
payroll date following the Separation Date Effective Date (as defined in Exhibit
A), and will be subject to standard payroll deductions and
withholdings. On the first payroll date following the Separation Date
Release Effective Date, the Company will pay you the salary continuation
payments that you would have received on or prior to such date in a lump sum
under the original schedule but for the delay in the effectiveness of the
Separation Date
710286 v2/HN
Xx.
Xxxxx Xxxxx
May
1, 2008
Page
2
Release,
with the balance of the Severance Payments being paid as originally
scheduled. Each such installment will be deemed a separate “payment”
for purposes of Section 409A of the Internal Revenue Code. During the
period of time that you are receiving the Severance Payments, you will be
required to respond to questions from the Company’s CEO related to work that you
performed for the Company.
b. Bonus
Payment. Subject to approval by the Compensation Committee of
the Board of Directors, as an additional severance benefit, the Company will
make a lump-sum severance payment to you in an amount equal to $11,250, less
standard payroll deductions and withholdings, which represents one-half of your
Chief Compliance Officer Bonus for 2008. This amount will be paid to
you at the same time as the first salary continuation payment to be made to you
pursuant to section 3.a. above.
4. Health
Insurance. To the extent
provided by the federal COBRA law or, if applicable, state insurance laws, and
by the Company’s current group health insurance policies, you will be eligible
to continue your group health insurance benefits at your own expense following
the Separation Date. Later, you may be able to convert to an
individual policy through the provider of the Company’s health insurance, if you
wish. You will be provided with a separate notice describing your
rights and obligations under COBRA. If you timely elect continued
coverage under COBRA, the Company, as part of this Agreement and an additional
severance benefit subject to the effectiveness of your release, will reimburse
your COBRA premiums to continue your group health insurance coverage through
COBRA at the level in effect as of the Separation Date (including dependent
coverage, if applicable), for six (6) months after the Separation Date to the
extent such COBRA coverage remains available.
5. Stock
Options. Under the terms
of your stock option agreement and the applicable plan documents, vesting of
your stock options will cease as of the Separation Date. As an
additional severance benefit subject to the effectiveness of your release, the
Company is offering to extend the post-termination exercise period applicable to
your then-outstanding stock options for a nine (9) month period beyond the
ordinary exercise period. You will need to satisfy all of the
Company's federal and state income and employment withholding taxes upon
exercise of any nonstatutory stock options. Notwithstanding the
foregoing, no options will be extended beyond their original maximum
term. Except as expressly provided herein, all rights and obligations
with respect to your stock options will be as set forth in your stock option
agreement, grant notice and applicable plan documents.
6. Other
Compensation or Benefits. You acknowledge
that, except as expressly provided in this Agreement, you will not receive any
additional compensation, severance, or benefits after the Separation
Date.
7. Expense
Reimbursements.
You agree that, within ten (10) days after the Separation Date, you will submit
your final documented expense reimbursement statement reflecting all business
expenses you incurred through the Separation Date, if any, for which you seek
reimbursement. The Company will reimburse you for these expenses
pursuant to its regular business practice.
710286
v2/HN
Xx.
Xxxxx Xxxxx
May
1, 2008
Page
3
8. Return of
Company Property. By the Separation Date, you agree to return
to the Company all Company documents (and all copies thereof) and other Company
property within your possession, custody or control, including, but not limited
to, Company files, notes, drawings, records, business plans and forecasts,
financial information, specifications, computer-recorded information, tangible
property (including, but not limited to, computers), credit cards, entry cards,
identification badges, and keys; and, any materials of any kind that contain or
embody any proprietary or confidential information of the Company (and all
reproductions thereof). If you have used any personally owned
computer, server, or e-mail system to receive, store, review, prepare or
transmit any Company confidential or proprietary data, materials or information,
within twenty (20) days after the Separation Date, you shall provide the Company
with a computer-useable copy of such information and then permanently delete and
expunge such Company confidential or proprietary information from those systems;
and you agree to provide the Company access to your system as requested to
verify that the necessary copying and/or deletion is done. Your
timely return of all such Company documents and other property is a condition
precedent to your receipt of the severance benefits provided under this
Agreement.
9. Proprietary
Information Obligations. You acknowledge and agree to abide by
your continuing obligations under your Proprietary Information and Inventions
Agreement, a copy of which is attached hereto as Exhibit B.
10. Confidentiality. The
provisions of this Agreement will be held in strictest confidence by you and the
Company and will not be publicized or disclosed in any manner whatsoever; provided, however,
that: (a) you may disclose this Agreement in confidence to your
immediate family; (b) the parties may disclose this Agreement in confidence to
their respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (c) the Company may disclose this Agreement as necessary to
fulfill standard or legally required corporate reporting or disclosure
requirements; and (d) the parties may disclose this Agreement insofar as
such disclosure may be necessary to enforce its terms or as otherwise required
by law. In particular, and without limitation, you agree not to
disclose the terms of this Agreement to any current or former Company
employee.
11. Nondisparagement. You agree not to
disparage the Company, its officers, directors, employees, shareholders, and
agents, in any manner likely to be harmful to its or their business, business
reputation or personal reputation; provided that you will respond accurately and
fully to any question, inquiry or request for information when required by legal
process.
12. No
Admissions. You understand
and agree that the promises and payments in consideration of this Agreement
shall not be construed to be an admission of any liability or obligation by the
Company to you or to any other person, and that the Company makes no such
admission.
13. Release
of Claims.
a. General Release. In
exchange for the consideration under this Agreement to which you would not
otherwise be entitled, you hereby generally and completely release the Company
and its directors, officers, employees, shareholders, partners, agents,
attorneys,
710286
v2/HN
Xx.
Xxxxx Xxxxx
May
1, 2008
Page
4
predecessors,
successors, parent or subsidiary entities, insurers, affiliates and assigns from
any and all claims, liabilities and obligations, both known and unknown, that
arise out of or are in any way related to events, acts, conduct, or omissions
prior to or on the date you sign this Agreement.
b. Scope of
Release. This general release includes, but is not limited to:
(1) all claims arising out of or in any way related to your employment with the
Company or the termination of that employment; (2) all claims related to your
compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options or any other ownership interests in the Company;
(3) all claims for breach of contract, wrongful termination or breach of the
implied covenant of good faith and fair dealing; (4) all tort claims, including
claims for fraud, defamation, emotional distress and discharge in violation of
public policy; and (5) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation, attorneys’ fees, or other
claims arising under the federal Civil Rights Act of 1964 (as amended), the
federal Americans with Disabilities Act of 1990, the federal Age Discrimination
in Employment Act (the “ADEA”) (as amended), or the California Fair Employment
and Housing Act (as amended).
c. Excluded
Claims. Notwithstanding the foregoing, you are not hereby
releasing the Company from any of the following claims (collectively, the
“Excluded Claims”): (a) any rights or claims for indemnification you may
have pursuant to any written indemnification agreement with the Company to which
you are a party, the charter, bylaws, or operating agreements of the Company, or
under applicable law; (b) any rights which cannot be waived as a matter of
law; or (c) any claims arising from the breach of this Agreement. In
addition, nothing in this Agreement prevents you from filing, cooperating with,
or participating in any proceeding before the Equal Employment Opportunity
Commission, the Department of Labor, or the California Department of Fair
Employment and Housing, except that you hereby waive your right to any monetary
benefits in connection with any such claim, charge or proceeding. You
hereby represent and warrant that, other than the Excluded Claims, you are not
aware of any claims you have or might have against the Company or its directors,
officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent or subsidiary entities, insurers, affiliates or
assigns.
14. ADEA
Waiver. You acknowledge
that you are knowingly and voluntarily waiving and releasing any rights you may
have under the ADEA (“ADEA Waiver”). You also acknowledge that the
consideration given for the ADEA Waiver is in addition to anything of value to
which you were already entitled. You further acknowledge that you
have been advised by this writing, as required by the ADEA, that: (a)
your ADEA Waiver does not apply to any rights or claims that arise after the
date you sign this Agreement; (b) you should consult with an attorney prior to
signing this Agreement; (c) you have forty-five (45) days to consider this
Agreement (although you may choose to voluntarily sign it sooner); (d) you have
seven (7) days following the date you sign this Agreement to revoke (in a
written revocation sent to me); and (e) this Agreement will not be
effective until the date upon which the revocation period has expired, which
will be the eighth day after you sign this Agreement (the “Effective
Date”).
15. Section
1542 Waiver. In granting the
release herein, which includes claims which may be unknown to you at present,
you acknowledge that you have read and understand Section 1542 of the California
Civil Code: “A
general release does not extend to claims which the
710286
v2/HN
Xx.
Xxxxx Xxxxx
May
1, 2008
Page
5
creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.” You hereby expressly waive and relinquish all rights
and benefits under that section and any law or legal principle of similar effect
in any jurisdiction with respect to the releases granted herein, including but
not limited to the release of unknown and unsuspected claims granted in this
Agreement.
16. Representations. You hereby represent
that to date: (i) you have been paid all compensation owed and have been paid
for all hours worked; (ii) you have received all the leave and leave benefits
and protections for which you are eligible pursuant to the federal Family and
Medical Leave Act, the California Family Rights Act, or otherwise; and (iii) you
have not suffered any on-the-job injury for which you have not already filed a
workers’ compensation claim.
17. Disclosure
Under ADEA, 29 U.S.C. § 626(f)(1)(H). You hereby acknowledge that
the Company has provided you with the ADEA Disclosure Information (under Title
29 U.S. Code Section 626(f)(1)(H)), attached as Exhibit C to this
Agreement.
18. Cooperation
and Assistance. You agree that
you will not voluntarily provide assistance, information or advice, directly or
indirectly (including through agents or attorneys), to any person or entity in
connection with any claim or cause of action of any kind brought against the
Company, nor shall you induce or encourage any person or entity to bring such
claims. However, it will not violate this Agreement if you testify
truthfully when required to do so by a valid subpoena or under similar
compulsion of law. Further, you agree to voluntarily cooperate with
the Company if you have knowledge of facts relevant to any threatened or pending
litigation against the Company by making yourself reasonably available without
further compensation for interviews with the Company’s counsel, for preparing
for and providing deposition testimony, and for preparing for and providing
trial testimony.
19. Section
409A. For the avoidance of doubt, it is intended that all of
the payments and benefits provided in Sections 3, 4 and 5 above satisfy, to the
greatest extent possible, the exemptions from the application of Section 409A
provided under of Treasury Regulation 1.409A-1(b)(4)-(5), and
1.409A-1(b)(9)(iii) and (v).
20. Miscellaneous. This Agreement,
including all Exhibits, constitutes the complete, final and exclusive embodiment
of the entire agreement between you and the Company with regard to its subject
matter. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein,
and it supersedes any other such promises, warranties or
representations. This Agreement may not be modified or amended except
in a writing signed by both you and a duly authorized officer of the
Company. This Agreement will bind the heirs, personal
representatives, successors and assigns of both you and the Company, and inure
to the benefit of both you and the Company, their heirs, successors and
assigns. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question will
be modified so as to be rendered enforceable. This Agreement will be
deemed to have been entered into and will 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. Any ambiguity in this
Agreement
710286
v2/HN
Xx.
Xxxxx Xxxxx
May
1, 2008
Page
6
shall
not be construed against either party as the drafter. Any waiver of a
breach of this Agreement shall be in writing and shall not be deemed to be a
waiver of any successive breach. This Agreement may be executed in
counterparts and facsimile signatures will suffice as original
signatures.
If
this Agreement is acceptable to you, please sign below and return the original
to me.
We
wish you the best in your future endeavors.
Sincerely,
Chordiant
Software, Inc.
|
By:
|
/s/
Xxxx Xxxxxxx
|
||||
Xxxx
Xxxxxxx
Vice
President of Human Resources
Exhibit
A: Separation Date Release Agreement
Exhibit
B: Proprietary Information and Inventions Agreement
Exhibit
C: ADEA Disclosure
I
have read, understand and agree fully to the foregoing Agreement:
|
/s/
Xxxxx Xxxxx
|
|||||
|
Xxxxx
Xxxxx
|
|||||
|
Date:
|
5-21-08
|
||||
710286
v2/HN
Exhibit
A
Separation
Date Release Agreement
(to
be signed on or within 45 days after the Separation Date)
In
exchange for severance benefits to be provided to me by Chordiant Software, Inc.
(the “Company”) pursuant to the Separation Agreement between the Company and me
dated May 1, 2008 (the “Separation Agreement”), I hereby provide the following
Separation Date Release Agreement (the “Separation Date Release”).
In
exchange for the consideration under this Agreement to which I would not
otherwise be entitled, I hereby generally and completely release the Company and
its directors, officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, parent or subsidiary entities, insurers, affiliates
and assigns from any and all claims, liabilities and obligations, both known and
unknown, that arise out of or are in any way related to events, acts, conduct,
or omissions prior to or on the date I sign this Agreement.
This
general release includes, but is not limited to: (1) all claims arising out of
or in any way related to my employment with the Company or the termination of
that employment; (2) all claims related to my compensation or benefits from the
Company, including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock options or any
other ownership interests in the Company; (3) all claims for breach of contract,
wrongful termination or breach of the implied covenant of good faith and fair
dealing; (4) all tort claims, including claims for fraud, defamation, emotional
distress and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act (the
“ADEA”) (as amended), or the California Fair Employment and Housing Act (as
amended).
Notwithstanding
the foregoing, I am not hereby releasing the Company from any of the following
claims (collectively, the “Excluded Claims”): (a) any rights or claims for
indemnification I may have pursuant to any written indemnification agreement
with the Company to which I am a party, the charter, bylaws, or operating
agreements of the Company, or under applicable law; (b) any rights which
cannot be waived as a matter of law; or (c) any claims arising from the breach
of this Agreement. In addition, nothing in this Agreement prevents me
from filing, cooperating with, or participating in any proceeding before the
Equal Employment Opportunity Commission, the Department of Labor, or the
California Department of Fair Employment and Housing, except that I hereby waive
my right to any monetary benefits in connection with any such claim, charge or
proceeding. I hereby represent and warrant that, other than the
Excluded Claims, I am not aware of any claims I have or might have against the
Company or its directors, officers, employees, shareholders, partners, agents,
attorneys, predecessors, successors, parent or subsidiary entities, insurers,
affiliates or assigns.
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the ADEA, and that the consideration given for the waiver and
release in the preceding
710286 v2/HN
paragraph
is in addition to anything of value to which I am already entitled. I
further acknowledge that I have been advised by this writing
that: (a) my waiver and release do not apply to any rights or claims
that may arise after the date I sign this Separation Date Release; (b) I should
consult with an attorney prior to signing this Separation Date Release (although
I may choose voluntarily not to do so); (c) I have forty-five (45) days to
consider this Separation Date Release (although I may choose voluntarily to sign
it earlier); (d) I have seven (7) days following the date I sign this Separation
Date Release to revoke it by providing written notice of revocation to the
Company’s CEO; and (e) this Separation Date Release will not be effective
until the date upon which the revocation period has expired, which will be the
eighth calendar day after the date I sign it (the “Separation Date Release
Effective Date”).
I
UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS. I acknowledge that I have read and understand Section 1542 of
the California Civil Code 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.” I hereby expressly waive and
relinquish all rights and benefits under that section and any law or legal
principle of similar effect in any jurisdiction with respect to my release of
claims herein, including but not limited to the release of unknown and
unsuspected claims.
I
hereby represent that to date: (i) I have been paid all compensation owed and
have been paid for all hours worked; (ii) I have received all the leave and
leave benefits and protections for which I am eligible pursuant to the federal
Family and Medical Leave Act, the California Family Rights Act, or otherwise;
and (iii) I have not suffered any on-the-job injury for which I have not already
filed a workers’ compensation claim.
|
By:
|
/s/
Xxxxx Xxxxx
|
||||
|
Xxxxx
Xxxxx
|
|||||
|
Date:
|
June
30, 2008
|
||||
710286
v2/HN
Exhibit
B
PROPRIETARY
INFORMATION AND INVENTIONS AGREEMENT
710286 v2/HN
Exhibit
C
ADEA
Disclosure
710286 v2/HN
