November 30, 2006 Samuel T. Spadafora C/O Chordiant Software, Inc. 20400 Stevens Creek Blvd. Cupertino, CA 95014 Dear Sam:
November
30, 2006
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
C/O
Chordiant Software, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear
▇▇▇:
This
letter sets forth the terms 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. You
hereby resign as Chairman
and Chief Strategy Officer of the Company, as well as from any other offices
or
positions that you may hold with the Company, including your position on
the
Company’s Board of Directors, effective November 30, 2006 (the “Separation
Date”), and the Company hereby accepts such resignations.
2. Accrued
Salary and Vacation Pay.
On the Separation Date, the Company will pay you all accrued salary and all
accrued and unused vacation (if any) earned by you through the Separation
Date,
less standard payroll deductions and withholdings. You are entitled to these
payments by law.
3. Severance
Pay.
Although the Company is not otherwise obligated to do so, if you sign and
return
this Agreement to the Company, allow the release contained herein to become
effective, and comply with your obligations under this Agreement, the Company
will pay you as severance the amount of one hundred twenty-five thousand
dollars
($125,000.00)(the “Severance Amount”). The Severance Amount will be paid to you
in a lump sum on or within ten (10) days after the Effective Date of this
Agreement, as defined herein, and will be subject to standard payroll deductions
and withholdings.
4. Health
Insurance.
After the Separation Date, and 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. 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 the applicable state and/or federal insurance laws. As
an
additional severance benefit, if you enter into this Agreement and timely
elect
continued coverage, then the Company will reimburse you for premium payments
sufficient to continue your group health insurance coverage at the level
in
effect as of the Separation Date (including dependent coverage, if any) through
May 30, 2009; provided, however, that your right to such payments shall cease
on
the date that you become eligible for group health insurance benefits through
a
new employer. You agree to promptly notify the Company’s Chief Executive Officer
(“CEO”) in writing if you become eligible for group health insurance coverage
through a new employer during the reimbursement period.
5. Stock
Options. Pursuant
to the terms of your stock option agreements (the “Options”) and the governing
plan documents, the shares subject to your Options will cease vesting as
of the
Separation Date. Further, the vesting of any restricted stock awards shall
cease
on the Separation Date. If you sign this Agreement, and allow the release
contained herein to become effective, then as part of this Agreement, the
Company will extend the post-termination exercise period applicable to the
Options to the later of (i) the original expiration of the post-termination
exercise period of the Options (as set forth in the applicable stock option
agreements) or (ii) the last day of the 30-day period measured from the first
day that the Options can be exercised in compliance with applicable securities
laws (e.g.,
the 30th day following the date on which the Company’s Registration Statement on
Form S-8 is “re-activated”), but in no event later than the expiration of the
ten year term of the Options. Except as provided herein, the Options shall
continued to be governed by the terms and conditions of your Options and
the
governing plan documents.
6. No
Other Compensation or Benefits.
You acknowledge that, except as expressly provided in this Agreement, you
have
not earned and will not receive from the Company any additional compensation,
severance, or benefits relating to or arising from your employment with the
Company, after the Separation
Date,
with the exception of any vested right you may have under the express terms
of a
written ERISA-qualified benefit plan (e.g., 401(k) account). You acknowledge
that you are not owed any bonus, incentive compensation, or commissions,
except
as may be expressly provided herein. You further acknowledge and agree that
you
are not entitled to receive, and will not receive, any severance benefits
or
other compensation set forth in your employment offer letter dated April
24,
1998, as amended by letter agreement dated August 29, 2005 (the “Employment
Agreement”). You
further represent that you have been paid all compensation owed and for all
hours worked, have received all the leave and leave benefits and protections
for
which you are eligible pursuant to the Family and Medical Leave Act or
otherwise, and have not suffered any on-the-job injury for which you have
not
already filed a claim.
7. Expense
Reimbursement.
You agree that, within thirty (30) days after the Effective Date of this
Agreement, you will submit your final documented expense reimbursement statement
reflecting all business expenses you incurred through the Separation
Date,
for which you seek reimbursement. The Company will reimburse you for such
expenses pursuant to its regular business practice.
8. Publication.
The Company will provide you with a copy of any written public announcement
of
your resignation that it intends to make prior to publication. Although you
will
be entitled to review the contents of any such announcement, the Company
will
have sole and final control over the contents of any such
announcement.
9. Return
of Company Property.
Subject to the provisions contained in the following paragraph, you agree
to
fulfill your obligation to return to the Company on the Separation Date all
Company documents (and all copies thereof) and other Company property in
your
possession or control, including, but not limited to, Company files, notes,
correspondence, memoranda, notebooks, drawings, records, reports, lists,
compilations of data, proposals, agreements, drafts, minutes, studies, plans,
forecasts, purchase orders, business cards and stationery, financial and
operational information, technical and training information, research and
development information, customer information and contact lists, sales and
marketing information, personnel information, vendor information, promotional
literature and instructions, product and manufacturing information,
computer-recorded information, electronic information (including e-mail and
correspondence), other tangible property and equipment (including, but not
limited to, computer equipment, facsimile machines, and cellular telephones),
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 in whole or in part). You agree
that
you will immediately make a diligent search to locate any such documents,
property and information. In addition, if you have used any personal computer,
server, or e-mail system to receive, store, prepare or transmit any Company
confidential or proprietary data, materials or information, you agree to
immediately provide the Company with a computer-useable copy of all such
information; and you agree to provide the Company access to your system as
reasonably requested to verify that the necessary copying is completed. Your
timely return of all such Company documents and other property is a precondition
to your receipt of the Severance Amount and other benefits provided under
this
Agreement.
10. Computer;
Monitor; Cell Phone; Email and Voicemail Access.
Notwithstanding the preceding paragraph, the Company will allow you to keep
your
Company-issued computer, monitor and cell phone. Before releasing the computer
to you, the Company will replace the hard drive on the computer with a hard
drive that does not contain any Company information or data. The Company
will
also permit you to have access to your Company email account and voicemail
box
for a one month period following the Separation Date.
11. Proprietary
Information Obligations.
You acknowledge
your continuing obligations under your Proprietary Information and Inventions
Agreement (the “Proprietary Information Agreement”), a copy of which is attached
hereto as Exhibit A.
12. Nondisparagement.
You
agree not to disparage the Company and its officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to them or their
business, business reputation or personal reputation; and the Company (through
its officers and directors) agrees not to disparage you in any manner likely
to
be harmful to you or your business, business reputation or personal reputation;
provided that you and the Company may respond accurately and fully to any
inquiry or request for information when required by legal process.
13. No
Voluntary Adverse Action.
You agree that you will not voluntarily (except in response to legal compulsion)
assist any third party in bringing or pursuing any proposed or pending
litigation, arbitration, administrative claim or other formal proceeding
against
the Company, its parent or subsidiary entities, affiliates, officers, directors,
employees or agents.
14. Cooperation.
Unless your legal counsel advises you otherwise, you agree to take reasonable
efforts to cooperate with the Company in connection with its actual or
contemplated defense, prosecution, or investigation of any claims or demands
by
or against third parties, or other matters, arising from events, acts, or
failures to act that occurred during the period of your employment by the
Company. Such cooperation may include, without limitation, making yourself
available to the Company upon reasonable notice, without subpoena, to provide
complete, truthful, and accurate information in witness interviews and
deposition and trial testimony. The Company will reimburse you for reasonable
out-of-pocket expenses you incur in connection with any such cooperation
(excluding forgone wages or other compensation) and will make reasonable
efforts
to accommodate your scheduling needs. In addition, you agree to execute all
documents (if any) necessary to carry out the terms of this
Agreement.
15. No
Admissions.
Nothing contained in this Agreement shall be construed as an admission by
you or
the Company of any liability, obligation, wrongdoing or violation of
law.
16. Release
of Claims. In
exchange for the consideration under this Agreement to which you would not
otherwise be entitled, including but not limited to the Severance Amount
and
payment of health insurance continuation premiums, you hereby generally and
completely release, acquit and forever discharge the Company and its parent
or
subsidiary entities, successors, predecessors and affiliates, and its and
their
directors, officers, employees, shareholders, agents, attorneys, insurers,
affiliates and assigns, from any and all claims, liabilities and obligations,
both known and unknown, that arise from or are in any way related to events,
acts, conduct, or omissions occurring at any time prior to and including
the
date you sign this Agreement. This general release includes, but is not limited
to: (a) all claims arising out of or in any way related to your employment
with
the Company or the termination of that employment; (b) all claims related
to your compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance payments, fringe
benefits, stock, stock options, or any other ownership or equity interests
in
the Company; (c) all claims for breach of contract, wrongful termination,
and breach of the implied covenant of good faith and fair dealing; (d) all
tort claims, including but not limited to claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e)
all
federal, state, and local statutory claims, including but not limited to
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 (as amended), the federal Age
Discrimination in Employment Act of 1967 (as amended) (the “ADEA”), the
California Labor Code, and the California Fair Employment and Housing Act.
Notwithstanding the foregoing, you are not hereby releasing the Company from
any
obligation it may otherwise have to indemnify you for your acts within the
course and scope of your employment with the Company, pursuant to the articles
and bylaws of the Company, any fully executed written agreement with the
Company, or applicable law. Further, notwithstanding the foregoing, nothing
in
this Agreement shall prevent 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 acknowledge and agree that you shall not recover
any
monetary benefits in connection with any such claim, charge or proceeding
with
regard to any claim released herein. You
represent that you have no lawsuits, claims or actions pending in your name,
or
on behalf of any other person or entity, against the Company or any other
person
or entity subject to the release granted in this paragraph. In addition,
you
covenant not to ▇▇▇, initiate, or continue any legal or administrative
proceeding with regard to any or all claims you have released
herein.
17. ADEA
Waiver.
You hereby acknowledge that you are knowingly and voluntarily waiving and
releasing any rights you may have under the ADEA and that the consideration
given for the waiver and release in the preceding paragraph 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 waiver and release do not apply to any rights or claims that may arise
after you sign this Agreement; (b) you should consult with an attorney prior
to
executing this Agreement (although you may voluntarily decide not to do so);
(c)
you have twenty-one (21) days within which to consider this
Agreement (although
you may choose to voluntarily execute this Agreement earlier);
(d) you have seven (7) days following the execution of this
Agreement to
revoke this Agreement (in a written revocation sent to the Company’s CEO); and
(e) this Agreement will not be effective until the eighth day after this
Agreement has been signed both by you and by the Company (the “Effective
Date”).
18. Section
1542 Waiver.
In giving the releases set forth in this Agreement, which include claims
which
may be unknown to you at present, you acknowledge that you 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.”
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.
19. Miscellaneous.
This Agreement 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 expressly
supersedes your employment offer letter dated April 24, 1998, as amended
by
letter agreement dated August 29, 2005. 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
in a manner consistent with the intent of the parties insofar as possible
under
applicable law. This Agreement shall be deemed to have been entered into,
and
construed and enforced in accordance with, the laws of the State of California
without regard to conflicts of law principles. Any ambiguity in this Agreement
shall not be construed against either party as the drafter. Any waiver of
a
breach of this Agreement, or rights hereunder, shall be in writing and shall
not
be deemed to be a waiver of any successive breach or rights hereunder. This
Agreement may be executed in counterparts which shall be deemed to be part
of
one original, and facsimile signatures will suffice as original signatures.
If
this Agreement is acceptable to you, please sign below and return the original
to me.
Sincerely,
Chordiant
Software, Inc.
By:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇
President
and Chief Executive Officer
Understood
and Agreed:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Date:
___________________
Exhibit
A
Proprietary
Information and Inventions Agreement