EXHIBIT 10.12
SEPARATION AND RELEASE AGREEMENT
This agreement, dated March 13, 2001 ("Agreement") is between Xxxxxxx
Xxxxxx ("Employee") and Mercator Software, Inc., a Delaware corporation (the
"Company").
WHEREAS, the employment of Employee with the Company will terminate in
accordance with the terms of this Agreement; and
WHEREAS, the parties mutually agree to resolve any claims or disputes
that may exist between them,
THEREFORE, the parties agree as follows:
1. Employee's last day of employment with the Company shall be
March 31, 2001. From March 14, 2001 until March 31, 2001, and at any time that
Employee is providing Advisory services to the Company, Employee shall work from
home. During the period from March 14, 2001 to March 31, 2001, Employee will be
paid at her rate of salary currently in effect through March 31, 2001, Employee
will also be paid for accrued but unused vacation time as of March 31, 2001.
2. Subject to the terms and conditions of this Agreement,
Employee shall receive from the Company the following, which includes sums of
money, property and benefits that Employee is not otherwise entitled to:
a. Employee will be paid twelve (12) months salary, at Employee's
rate of salary currently in effect, as severance pay and for her services as an
Adviser to the Company. These payments will be made over a period of twelve (12)
months commencing on April 1, 2001, and will be made through the Company's
regular payroll, net applicable withholding deductions.
b. Employee may continue her group medical and dental insurance
in accordance with the provisions of COBRA. The Company will pay for such
coverage for twelve (12) months. Employee shall pay for any coverage under
COBRA beyond this twelve (12) month period. In addition the Company shall pay
for Employee's present group life insurance for twelve (12) months from April
l, 2001. In addition, in consideration of the services to be rendered in
accordance with paragraph 3 herein, Employee's stock options granted under the
1997 Equity Incentive Plan and listed in Schedule 1 hereto shall vest as set
forth on Schedule 1. All such options shall terminate, to the extent not
exercised, on June 29, 2002.
c. Employee shall retain possession and be granted ownership of
the Company computer and a compatible printer in her home to perform the
Advisory services required in paragraph 3 hereof.
3. In consideration of the payments hereunder and of other
benefits provided under this Agreement, Employee will give such assistance. as
an Advisor, to the Company as may be reasonably required by the Company, upon
two (2) days notice by the Company. Such Advisory services, which will be
provided to the Company by Employee during the period from April 1, 2001 through
March 31, 2002, are limited to the equivalent of three days a month.
4. In consideration of the payments hereunder and of other
benefits provided under this Agreement, Employee agrees that during the time
payments are made pursuant to paragraph 2a hereunder, Employee will not, whether
as an employee, consultant, director, or officer, directly of indirectly, own,
manage, operate, control, be employed by, participate in or be connected in any
manner with the ownership, management, operation or control of any business or a
division of any business that is in competition with products or services
produced or provided or under development by the Company as of the date of
Employee's termination, nor will Employee, either directly or indirectly, induce
any other individual employed by the Company as of the date Employee's
employment with the Company to leave the Company and enter into employment with
Employee or Employee's then employer, nor will Employee solicit or induce any
customer of the Company to cease doing business with the Company and do business
with Employee or Employee's then employer.
5. In consideration of and as a condition to the payments and
other benefits under this Agreement, Employee, on behalf of herself, her heirs
or her assigns, hereby, to the extent allowed by law, releases and forever
discharges the Company and all of its affiliates, present or former officers,
directors, employees, agents, successors and assigns of and from any and all
claims or causes of action or other demands whatsoever, known or unknown, which
she ever had, now has, or hereafter can, shall or may have against the Company
arising out of or related to any matter which happened, developed or occurred
before the date of this Agreement, including, but not limited to, all claims,
causes of action or demands arising from or related to her employment
relationship with the Company or the termination of that relationship. The
claims that Employee may be releasing under this Agreement include but are not
limited to any claim that the Company in any way discriminated against her on
account of her race, color, religious creed, sex, age, marital status, national
origin, ancestry, alienage, veteran status, present or past history of mental
disorder, mental retardation or physical disability, or sexual preference as
well as any claim that the Company wrongfully terminated her employment or
breached any express or implied employment contract, and any associated
attorneys' fees. Employee further understands that the claims that she may be
releasing under this Agreement include any possible claims of age discrimination
under state law and under the federal Age Discrimination in Employment Act, 29
U.S. Code (S) 621 et seq., for any events that took place up to the date of this
Agreement.
6. Employee acknowledges and agrees that before signing or
rejecting this Agreement she has been permitted at least twenty-one (21) days to
consider whether to enter into this Agreement and the consequences of such an
Agreement, and
that she has been advised by the Company to consult with an attorney to review
this Agreement and its consequences and has done so.
7. Employee acknowledges and agrees that she may revoke this
Agreement at any time up to and including the seventh (7th) day after she has
executed it. Any such revocation must be in writing to the Company by the close
of business on the date ending said revocation period. if revoked, this
Agreement shall be null and void in its entirety.
8. As part of this Agreement, Employee agrees to refrain from
taking action or making statements, written or oral, which either disparage or
defame the goodwill or reputation of the Company. its directors, officers and
employees or which could adversely affect the morale of other Company employees.
9. Except for informing her spouse and communicating with legal
or financial advisers, and except as otherwise may be required by applicable
law, Employee will keep confidential the terms and conditions of this Agreement.
10. Employee recognizes and agrees that this Agreement is not
intended to imply any wrongdoing on the Company's part with respect to her
employment or its termination, or any other reason, and shall not constitute
evidence of the same. The Company recognizes and agrees that this Agreement is
not intended to imply any wrongdoing on the Employee's part with respect to her
employment, or any other reason, and shall not constitute evidence of the same.
11. Employee's decision to enter into this Agreement is based
solely on the mutual considerations described above and is wholly her free act
and deed. Before signing this Agreement Employee has had the opportunity to
carefully consider the terms and ramifications of the Agreement and the
opportunity to consult with her advisors, legal or otherwise, which the Company
has advised Employee to do.
12. If any terms of this Agreement are declared invalid by any
court of competent jurisdiction, the Agreement shall be deemed amended by
excluding the invalid term or terms, and all remaining terms shall continue in
full force and effect. Employee agrees to execute such amendments as may be
necessary to accomplish the intent of this paragraph, which is to maintain in
force all terms of this Agreement to the full extent permitted by law.
13. Employee represents and warrants that Employee has not
filed, either directly or indirectly, nor has caused to be filed on Employee's
behalf, any legal proceeding in any federal or state court or any administrative
proceeding asserting any claims against the Company or its parents,
subsidiaries or affiliates, predecessors, successors or assigns, or its or their
respective current and/or former partners, directors, trustees,
shareholders/stockholders, investors, officers, employees, attorneys and/or
agents concerning or arising from Employee's employment or termination of
employment with the Company.
14. Except for the Company property referred to in paragraph 2c
hereof, Employee agrees to immediately return to the Company upon the execution
of this Agreement all Company documents, materials, equipment and other property
("Company property"), which is in Employee's possession. Company property may
include, but is not limited to, all originals and copies, whether in electronic
or other form, and whether in draft or final form of: (a) (i) trade secrets;
(ii) confidential information; (iii) business or marketing plans or proposals;
(iv) names, telephone numbers, contact names, addresses, and/or business cards
of Company prospects, customers and potential customers; (v) customer lists;
(vi) prospect lists; (vii) customers contracts or proposals and other customer
information; (viii) sales information; (ix) pricing information; (x) quotes;
(xi) projections; (xii) manuals; (xiii) files; (xiv) notes; all software
programs and data compiled with the use of programs; diskettes or CD-roms and
any information, tangible or intangible, stored thereon. Company property also
includes: (b)(i) cellular or mobile telephones; (ii) laptops, printers or any
other computer hardware; (iii) credit cards; (iv) passwords; (v) telephone
charge cards; (vi) building keys and passes; and any and all other
information or property that is or was related to Employee's employment with
the Company. Employee agrees that in the event that Employee discovers any other
Company property or proprietary materials in Employee's possession after the
execution of this Agreement, Employee will immediately return such materials to
the Company.
15. Employee agrees not to reveal to any person or entity any
Confidential Information of the Company. The term "Confidential Information"
shall include, without limitation, any information concerning the organization,
business or finances of the Company or of any third party which the Company is
under an obligation to keep confidential and that is maintained by the Company
as confidential. Such Confidential Information shall include, but is not limited
to, trade secrets or confidential information respecting inventions, products,
designs, methods, know how, techniques, systems, processes, engineering data,
software programs, software code, works of authorship, customer lists, customer
information, marketing or sales information, financial information, pricing
information, business plans, projects, plans and proposals. Employee further
shall maintain confidentiality concerning the dollar amount and all other
terms of this Agreement. Other than as required pursuant to legal process,
Employee will not discuss the same with anyone except Employee's immediate
family and accountants or attorneys when such disclosure is necessary for them
to render professional services. Nothing herein shall prohibit or bar Employee
from providing truthful testimony in any legal proceeding or in communicating
with any governmental agency or representative or from making any truthful
disclosure required, authorized or permitted under law; except that in providing
such testimony or making such disclosures or communications, Employee will
use her best efforts to ensure that this paragraph is complied with to the
maximum extent possible.
16. This Agreement sets forth the entire agreement and
understanding relating to your employment with and termination from the Company
and supersedes all other agreements between the Company and Employee, including
the
employment contract entered into by the Company and the Employee, dated
October 1, 1994.
17. For purposes of this Agreement, a "change in control" shall
be deemed to have occurred if (A) any "person" (as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act")), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or a corporation owned, directly or
indirectly by the stockholders of the Company in substantially the same
proportions, becomes after March 31, 2001 the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's
then outstanding securities; or (B) the composition of the Board changes such
that, during any period of two consecutive years (not including any period prior
to January 1, 2001), individuals who at the beginning of such period
constitute the Board and any new director whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least three-fourths (3/4) of the directors then still in office who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority thereof; or (C) substantially all of the assets of the Company are
disposed of by the Company pursuant to a merger, consolidation, partial or
complete liquidation, a sale of assets or otherwise, but not including a
reincorporation or similar transaction resulting in a change only in the form of
ownership or such assets.
March 30, 2001 /s/ Xxxxxxx Xxxxxx
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Date Xxxxxxx Xxxxxx
MERCATOR SOFTWARE, INC.
March 29, 2001 By /s/ Xxxxx Xxxxx Drankosler
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Date Its Vice President, Human Resources
Exhibit A- Vesting Schedule
Vesting Date # of Options Xxxxx Xxxxx
---------------- --------------- --------------
04/12/2001 12,500 $ 8.00
05/02/2001 3,125 $ 5.063
05/04/2001 12,500 $ 30.50
05/18/2001 12,500 $ 19.25
07/12/2001 12,500 $ 8.00
08/02/2001 3,125 $ 5.063
10/12/2001 12,500 $ 8.00
11/02/2001 3,125 $ 5.063
01/12/2002 12,500 $ 8.00
02/27/2002 12,500 $ 6.8516
03/20/2002 3,125 $ 16.50
1. If change of control during advisory period, 1/2 of unvested shares become
immediately vested.
2. All of the above options and currently vested options can be exercised until
90 days after the end of advisory period, i.e. until June 29, 2002.
