SEPARATION AND RELEASE AGREEMENT
Exhibit 10.18
This
SEPARATION AND RELEASE AGREEMENT (the “Agreement”) is made and entered into by and between ROGUE WAVE SOFTWARE, INC. (“Rogue Wave”) and Xxxxxxx X. X’Xxxxx, with a principal residence at principal
residence at 00 Xxxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000(“Xx. X’Xxxxx”) (collectively “Parties”) as of the Execution Date of this Agreement defined in paragraph 29 below.
WHEREAS, effective as of November 12, 2002, Xx. X’Xxxxx tendered his resignation as Vice President of Professional Services
and any and all other positions he may have held as an employee, officer, and director of Rogue Wave as well as any such positions he may have held with Rogue Wave’s corporate affiliates, parents or subsidiaries;
WHEREAS, Rogue Wave has accepted the resignation tendered by Xx. X’Xxxxx;
WHEREAS, the Parties wish to make the separation amicable but conclusive on the terms and conditions set forth herein; and
WHEREAS, Xx. X’Xxxxx accepts the benefits of this Agreement with the acknowledgment that by its terms
he has been fully and satisfactorily compensated and will receive no payment, compensation, or benefits relating in any manner to Xx. X’Xxxxx’x employment with Rogue Wave or the separation thereof except as set forth in this Agreement.
II. COVENANTS
NOW THEREFORE, in consideration of the above set forth recitals which are incorporated herein by reference and the mutual promises and covenants contained in this
Agreement, it is hereby agreed by and between the Parties hereto as follows:
1.
RESIGNATION. Xx. X’Xxxxx has tendered and Rogue Wave has accepted Xx. X’Xxxxx’x resignation as Vice President of Professional Services and any and all other positions he may
have held as an employee, officer, and director of Rogue Wave as well as any such positions he may have held with any of Rogue Wave’s corporate affiliates, parents or subsidiaries, effective as of November 12, 2002 (“Separation
Date”).
2. MODIFICATION AND
SUBSTITUTION OF AGREEMENT. The Parties agree that this Agreement shall replace, modify, and completely supercede any obligations set forth in any former agreement, whether written or oral concerning
the terms of Xx. X’Xxxxx’x employment with, or separation from, Rogue Wave. This Agreement establishes the final agreement between the parties as to the obligations of Rogue Wave, and this Agreement may be altered only in a writing signed
by the Chief Executive Officer of Rogue Wave Software, Inc.
3.
CONSIDERATION. Although Rogue Wave has no policy or procedure requiring payment of any severance benefits, Rogue Wave agrees to the following as part of this Agreement: Rogue Wave agrees to pay Xx.
X’Xxxxx $30,769.23 (Thirty thousand seven hundred sixty nine dollars and twenty three cents), less all legally required deductions and required withholdings (“Lump Sum Payment”). The Lump Sum Payment shall be made in a one-time
payment within 10 days of the Execution Date of this Agreement. The Lump Sum Payment shall be by check and delivered by first class mail, overnight delivery, or hand delivery (at the sole option of Rogue Wave) to Xx. X’Xxxxx at the address of
his principal residence set forth above.
4.
INSURANCE. To the extent permitted by the federal COBRA law, applicable state laws, and the insurance policies and rules applicable to Rogue Wave, Xx. X’Xxxxx will be
eligible to continue his health insurance benefits. Xx. X’Xxxxx acknowledges that Rogue Wave has provided him with a COBRA notification form setting forth Xx. X’Xxxxx’x rights and responsibilities with regard to COBRA coverage. Should
Xx. X’Xxxxx timely elect to continue coverage pursuant to COBRA, Rogue Wave agrees to pay the premiums in the amount of the premium to that which Rogue Wave paid immediately prior to the Separation Date for Xx. X’Xxxxx’x insurance
coverage for a period beginning December 1, 2002 and concluding February 28, 2003 (“COBRA Payment Period”), unless this obligation is terminated earlier as set forth in this Agreement. Should Xx. X’Xxxxx obtain employment during the
COBRA Payment Period, Rogue Wave’s obligation under this paragraph shall forever cease upon the expiration of the waiting period (if any) for entitlement to insurance coverage through Xx. X’Xxxxx’x new employer. Xx. X’Xxxxx
agrees to notify Rogue Wave in writing in the event Xx. X’Xxxxx obtains employment during the COBRA Payment Period.
5. SHARES SUBJECT
TO OPTION. Pursuant to your stock option grant(s) and the plan(s) governing those grant(s) (the “Stock Plan”), vesting of your stock options will cease on your Separation Date. Any right to exercise any
vested shares will be as set forth in your stock option grant notice, the stock option agreement, and the Stock Plan.
6. OTHER COMPENSATION. Except as expressly provided herein, Xx. X’Xxxxx acknowledges and agrees that Xx. X’Xxxxx will not receive (nor is Xx.
X’Xxxxx entitled to receive) any consideration, compensation, payments, bonuses, commissions, reimbursements, incentive payments, stock, equity interests, stock options, or benefits of any kind. Xx. X’Xxxxx further acknowledges and
agrees that Rogue Wave has paid to Xx. X’Xxxxx in full any and all wages, salary, accrued but unused vacation, floating holiday accrued but not taken, personal time off, commissions, bonuses, stock options, incentive payments and compensation
due and owing, if any, as of the Separation Date. The Parties also agree that, except as provided in paragraph 14 of this Agreement supersedes any and all prior agreements concerning the obligations of Rogue Wave to Xx. X’Xxxxx.
7. DENIAL OF LIABILITY.
The Parties acknowledge that any payment by Rogue Wave and any release by Xx. X’Xxxxx pursuant to this Agreement are made to ensure that the separation is amicable, that in making any such payment or release, Rogue Wave and Xx. X’Xxxxx
in no way admit any liability to each other and that they expressly deny any such liability.
8. NONDISPARAGEMENT. Xx. X’Xxxxx agrees that he will not at any time disparage Rogue Wave nor any of its officers or directors to third parties in any manner likely to be harmful to
Rogue Wave, its business reputation, or the personal or business reputation of its officers, directors, shareholders and/or employees. Notwithstanding the prohibition in the preceding sentence, Xx. X’Xxxxx shall respond truthfully, accurately
and fully to any question, inquiry, or request for information when required by legal process.
9. ROGUE WAVE PROPERTY. Prior to the Separation Date, Xx. X’Xxxxx agrees to return to Rogue Wave all Rogue Wave documents
in whatever form (and all copies thereof) and any and all other Rogue Wave property in Xx. X’Xxxxx’x possession, custody or control, including, but not limited to, financial information, customer information, customer lists, employee
lists, Rogue Wave files, notes, contracts, contracts, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, software, tangible property, including any computer equipment, laptops,
cellular telephones, pagers, credit cards, entry cards, identification badges and keys, and any materials of any kind which contain or embody any proprietary or confidential material of Rogue Wave (and all reproductions thereof in any form including
electronic or paper). Xx. X’Xxxxx agrees that should he fail to comply with this paragraph of this Agreement, Rogue Wave may pursue any rights it has in law or in equity to recover such information, to prevent Xx. X’Xxxxx’x use,
disclosure, or destruction of such property, and to recover damages for Xx. X’Xxxxx’x retention, use, disclosure, or destruction of Rogue Wave property.
10. CONFIDENTIALITY/NON-DISCLOSURE. Xx. X’Xxxxx acknowledges that confidentiality and
nondisclosure of the terms of this Agreement are material considerations for the Parties entering into this Agreement. Xx. X’Xxxxx acknowledges, represents, and agrees that he has not and will not discuss the terms or provisions of the
Agreement with any current or former Rogue Wave employee except the Vice President of Human Resources and the Chief Executive Officer. As such, the provisions of this Agreement shall be held in strictest confidence by Xx. X’Xxxxx and shall not
be publicized or disclosed in any manner whatsoever, including but not limited to, the print or broadcast media, any public network such as the Internet, any other outbound data program such as computer generated mail, reports or faxes, or any
source likely to result in publication or computerized access. Notwithstanding the prohibitions in this paragraph: (a) the Xx. X’Xxxxx may disclose this Agreement in confidence to his attorneys, accountants, auditors, tax preparers, and
financial advisors; and (b) Xx. X’Xxxxx may disclose this Agreement insofar as such disclosure may be necessary to enforce its terms or as otherwise required by law. Xx. X’Xxxxx agrees and acknowledges that any breach of the foregoing
provisions concerning confidentiality would cause damage to Rogue Wave in an amount that would be extremely difficult or impossible to calculate. Accordingly, Xx. X’Xxxxx agrees that, in the event of any breach by Xx. X’Xxxxx, his spouse,
attorneys, accountants, or tax advisors of the foregoing provisions, Rogue Wave shall be entitled to liquidated damages in the amount of Twenty Five Thousand Dollars ($25,000). Xx. X’Xxxxx explicitly agrees and acknowledges that this provision
with respect to liquidated damages is reasonable under the circumstances existing at the time the Agreement was made.
11. ADEA WAIVER AND RELEASE BY XX. X’XXXXX. Xx. X’Xxxxx acknowledges that Mr. O’Neillis
knowingly and voluntarily waiving and releasing any rights Mr. O’Neillmay have under the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA Waiver and Release”). Xx. X’Xxxxx acknowledges that the
consideration given for this ADEA Waiver and Release, provided for in paragraph 4 above, is in addition to anything of value to which Mr. O’Neillwas already entitled. The parties agree and acknowledge that Xx. X’Xxxxx has been
advised by this writing, as required by the ADEA that: (a) this ADEA Waiver and Release does not apply to any claims under ADEA that may arise after the date that Xx. X’Xxxxx signs this Agreement; (b) Xx. X’Xxxxx has the right to and is
advised to consult with an attorney prior to executing this Agreement; (c) Xx. X’Xxxxx has forty-five days within which to consider this ADEA Waiver and Release (although Xx. X’Xxxxx may choose to
voluntarily execute this ADEA Waiver and Release earlier); (d) Xx. X’Xxxxx has seven days following
the execution of this Agreement to revoke Xx. X’Xxxxx’x ADEA Waiver and Release by sending, via certified United States mail, written notice of revocation to the attention of Rogue Wave, Attn. Vice President of Human Resources; 0000
Xxxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, 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 Xx. X’Xxxxx signs this Agreement, provided that the Company has
also signed this Agreement by that date. The parties acknowledge and agree that revocation by Xx. X’Xxxxx of the ADEA Waiver and Release is not effective to revoke Xx. X’Xxxxx’x waiver or release of any other claims pursuant to
this Agreement. The parties further agree that revocation by Xx. X’Xxxxx of the ADEA Waiver and Release shall entitle Rogue Wave to recover any and all payments made by Rogue Wave in consideration for Xx. X’Xxxxx executing and not revoking
the ADEA Waiver and Release, as articulated in paragraph 2 and to recover the costs, expenses and attorney’s fees incurred in attempting to recover such payments.
12. BUSINESS EXPENSE REIMBURSEMENT. Rogue Wave agrees to reimburse Xx. X’Xxxxx for those
reasonable business expenses he necessarily incurred in his capacity as a Rogue Wave employee prior the Separation Date to the extent such expenses are consistent with Rogue Wave’s policies in this regard. Xx. X’Xxxxx acknowledges and
agrees that Rogue Wave will not reimburse him for any expenses he incurred after the Separation Date. Xx. X’Xxxxx must submit the necessary documentation establishing the amount, date and reason for expenses he incurred and for which he seeks
reimbursement no later than 15 days after the Separation Date.
13.
REFERENCES. To coordinate Rogue Wave’s response to any inquiries from prospective employers seeking employment references concerning Xx. X’Xxxxx, Xx. X’Xxxxx agrees to direct such prospective employers
exclusively to the Rogue Wave Vice President of Human Resources. Should the Vice President of Human Resources receive an inquiry, the Vice President (or an authorized agent acting on behalf of the Vice President) shall confirm Xx.
X’Xxxxx’x period of employment with Rogue Wave, the position he held, and the latest salary that he received as an employee and will state that company policy precludes the release of further information.
14. NONDISCLOSURE OF PROPRIETARY INFORMATION
AND NON-COMPETITION AGREEMENT. Xx. X’Xxxxx agrees and acknowledges that he is bound, and will continue to be bound after the Execution Date of this Agreement, by the terms of the
Employee Proprietary Information and Inventions Agreement (“Confidentiality Agreement”) between Xx. X’Xxxxx and Rogue Wave, executed by Xx. X’Xxxxx on February 24, 1999, a copy of which is attached hereto as Exhibit A and
which is incorporated herein as if set forth in full. Xx. X’Xxxxx specifically acknowledges that, without limitation, he remains bound by a covenant not to compete with Rogue Wave for the period of time specified in the Confidentiality
Agreement. Xx. X’Xxxxx acknowledges that this restriction prohibits him, without limitation, from engaging in the design, development, marketing or sale of any product, service, process, system, or software that was marketed, sold, or under
development by Rogue Wave (including Rogue Wave’s subsidiaries and divisions) at any time during Xx. X’Xxxxx’x employment with Rogue Wave. Xx. X’Xxxxx also specifically acknowledges that, without limitation, he remains bound by a
covenant not to solicit Rogue Wave customers, employees, and partners. Nothing in this paragraph should be construed to narrow the obligations of Xx. X’Xxxxx imposed by any other agreement, statute, case law or other source.
15. RELEASE OF CLAIMS BY
XX. X’XXXXX. For the consideration set forth in this Agreement and the mutual covenants of Rogue Wave and Xx. X’Xxxxx, Xx. X’Xxxxx hereby releases, acquits and forever discharges Rogue Wave, its
affiliated corporations and entities, its and their officers, directors, agents, representatives, servants, attorneys, employees, shareholders, successors and assigns 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 or unknown, suspected and unsuspected, disclosed and undisclosed, liquidated or contingent, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and including the Execution Date, including but not limited to: any and all such claims and demands directly or indirectly arising out of or in any way connected with Xx.
X’Xxxxx’x employment with Rogue Wave or the conclusion of that employment; claims or demands related to salary, bonuses, commissions, incentive payments, stock, stock options, or any ownership or equity interests in Rogue Wave, vacation
pay, personal time off, fringe benefits, expense reimbursements, sabbatical benefits, severance benefits, or any other form of compensation; claims pursuant to any federal, any state or any local law, statute, common law or cause of action
including, but not limited to, the Federal Civil Rights Act of 1964, as amended; damages, attorney’s fees, court costs, or any expenses under Title VII of the Federal Civil Rights Act of 1964, as amended; the Federal Americans with Disabilities
Act of 1990; the Family and Medical Leave Act; the Employee Retirement Income Security Act; the Colorado Anti-Discrimination Act; the Age Discrimination in Employment Act; the Equal Pay Act of 1963, as amended; the Fair Labor Standard Act, as
amended; Massachusetts General Laws c.151B; tort law, contract law; and wrongful discharge; discrimination; harassment; fraud; misrepresentation; defamation; libel; emotional distress; breach of the implied covenant of good faith and fair dealing,
or any other obligation arising under any statute, regulation, rule, agreement or source of law. Xx. X’Xxxxx agrees that in the event he brings a claim or charge covered by this release, or does not dismiss with prejudice and withdraw any claim
covered by this release, in which he seeks damages against Rogue Wave or in the event he seeks to recover against Rogue Wave in any claim brought by a governmental agency on his behalf, this Agreement shall
serve as a complete defense to such claims or charges.
16. TAX CONSEQUENCES. Xx. X’Xxxxx expressly
acknowledges that Rogue Wave has not made, nor herein makes, any representation about the tax consequences of any consideration provided by Rogue Wave to Xx. X’Xxxxx pursuant to this Agreement. Xx. X’Xxxxx agrees to indemnify and hold
Rogue Wave harmless for any and all claims or penalties asserted against Rogue Wave for failure to pay taxes due on any consideration provided by Rogue Wave pursuant to this Agreement.
17. COOPERATION. Xx. X’Xxxxx agrees to fully cooperate with Rogue Wave and make himself available to the company for any
investigations or lawsuits involving Rogue Wave or its successors or assigns. Except for time spent in depositions or trial, Xx. X’Xxxxx will be paid an hourly rate based on his final base salary for time spent at the request of Rogue Wave.
Rogue Wave agrees to provide reasonable notice to Xx. X’Xxxxx of the need to so participate in any investigation, deposition or trial and shall undertake in good faith to coordinate such time so as to not be a burden upon Xx.
X’Xxxxx’x new employment. Nothing in this Agreement will restrict or preclude Xx. X’Xxxxx from, or otherwise influence Xx. X’Xxxxx in, testifying fully and truthfully in legal, administrative, or any other proceedings involving
Rogue Wave, as required by law or formal legal process.
18. AGREEMENT
NOT TO SEEK REEMPLOYMENT. As a free and voluntary act, Xx. X’Xxxxx agrees never to seek or accept direct or indirect employment or consulting or contracting employment with Rogue
Wave for a period of five (5) years from the Execution Date of this Agreement. If this provision is breached by Xx. X’Xxxxx, the application will be rejected by Rogue Wave without any resulting liability for Rogue Wave. In the event Xx.
X’Xxxxx is employed as an employee, consultant, independent contractor, or otherwise, in contravention of the terms of this paragraph 18 of this Agreement, he shall be subject to summary dismissal or discharge without any resulting liability
for Rogue Wave. Notwithstanding the foregoing, Rogue Wave and Xx. X’Xxxxx agree that Xx. X’Xxxxx may seek or accept employment as an employee, consultant, independent contractor, or sub-contractor with any person or entity that contracts
with Rogue Wave, provided he does not work directly or indirectly on work related to Rogue Wave and that such employment does not violate Xx. X’Xxxxx’x obligations under the Confidentiality Agreement or any state or federal law, including
but not limited to the protection of Rogue Wave’s trade secrets. Xx. X’Xxxxx represents that he does not currently have any application for employment pending with Rogue Wave.
19. NO THIRD PARTY RIGHTS. The Parties agree that by
making this Agreement, they do not intend to confer any benefits, privileges, or rights to others. The Agreement is strictly between the Parties hereto, subject to the terms of paragraph 23 below, and that it shall not be construed to vest in any
other the status of third-party beneficiary.
20. VOLUNTARY
AND KNOWINGLY. Xx. X’Xxxxx acknowledges that, before executing this Agreement, he has been advised and given the opportunity to consult with counsel and has in fact sought and
received advice from counsel of his own choosing, and was fully advised of his rights under law. Xx. X’Xxxxx further acknowledges that he has reviewed this Agreement in its entirety, understands it, and voluntarily executes it.
21. DUTY TO EFFECTUATE.
The Parties agree to perform any lawful additional acts, including the execution of additional agreements, as are reasonably necessary to effectuate the purpose of this Agreement.
22. ENTIRE AGREEMENT. Except for those agreements expressly referenced herein,
this Agreement, including Exhibits A hereto, constitutes the complete, final and exclusive embodiment of the entire agreement between Xx. X’Xxxxx and Rogue Wave with regard to the subject matter hereof. This Agreement is entered into without
reliance on any promise or representation, written or oral, other than those expressly contained herein. It may not be modified except in a writing signed by the Chief Executive Officer of Rogue Wave.
23. SUCCESSORS AND ASSIGNS. This
Agreement, including Exhibit A, hereto, shall bind the heirs, personal representatives, successors, assigns, executors and administrators of each party, and insure to the benefit of each party, its heirs, successors and assigns.
24. APPLICABLE LAW. The Parties agree and intend that Colorado
statutes and case law shall govern any and all disputes arising between the Parties relating to, construing, interpreting, or enforcing this Agreement and relating to any other aspect of Xx. X’Xxxxx’x employment with Rogue Wave.
25. ARBITRATION. The Parties agree,
that to submit any dispute between them concerning or arising out of this Agreement, or concerning or arising out of Xx. X’Xxxxx’x employment with Rogue Wave, to resolution in final and binding arbitration in Denver, Colorado under the
American Arbitration Association’s Rules for the Resolution of Employment Disputes before an arbitrator selected from the Judicial Arbiter Group located in Denver, Colorado. The parties agree that the arbitration
proceedings shall not be open to the public. The arbitrator will be selected by mutual agreement of the parties, and such agreement shall not be
unreasonably withheld. The decision of the arbitrator shall be final and binding. The arbitration award may be enforced in any court of competent jurisdiction. Each party will bear her/its own costs and attorneys’ fees incurred in connection
with any arbitration, and no party or an attorney for any party shall seek or accept an award of attorneys’ fees under any statute, rule or order of court in connection with the lawsuit. The Parties agree that nothing in this paragraph shall
prevent either Party from pursuing claims for temporary equitable relief concerning obligations under this Agreement in a court of competent jurisdiction. Any party bringing an action in contravention of this paragraph shall be liable to the other
party for the costs, expenses and attorney’s fees incurred in successfully dismissing the action or successfully transferring the action to arbitration under this paragraph.
26. SEVERABLE. If any provision of this Agreement is determined to be invalid, void or
unenforceable, in whole or in part, this determination will not affect any other provision of this Agreement, and the provision in question shall be modified so as to be rendered enforceable.
27. ENFORCE ACCORDING TO TERMS. The
Parties intend this Agreement to be enforced according to its terms.
28. EXECUTION DATE. This Agreement is effective on the later of the dates that each of the Parties signed this Agreement
(“Execution Date”).
29. COUNTERPARTS. This
Agreement may be executed in one or more counterparts, any of which need not contain the signatures of more than one party but all signed counterparts taken together will constitute one and the same argument.
30. SECTION HEADINGS. The section and
paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
31. EXPIRATION. Unless otherwise agreed to by Rogue Wave in writing signed by an authorized Rogue Wave representative, this agreement must
be executed by Xx. X’Xxxxx and delivered to Rogue Wave no later than December 30, 2002, to be effective or binding on Rogue Wave.
IN WITNESS WHEREOF, the Parties have duly authorized and caused this Agreement to be executed as follows:
| XXXXXXX X. X’XXXXX, an individual
|
ROGUE WAVE SOFTWARE, INC.,
a Delaware corporation | |||||||
| /s/ Xxxxxxx X. X’Xxxxx |
/s/ Xxxx Xxxxxxxx | |||||||
| Xxxxxxx X. X’Xxxxx |
By: Its: |
Xxxx Xxxxxxxx Chief Executive Officer | ||||||
| Date: November 15, 2002 |
Date: November 15, 2002 | |||||||
Exhibit A: Employee Proprietary Information and Inventions Agreement, filed as Exhibit
10.13, Exhibit D, to the Registrant’s quarterly report on Form 10-Q for the quarter ended December 31, 2001.
