SEPARATION AGREEMENT AND RELEASE
SEPARATION AGREEMENT AND RELEASE
This Agreement is between Castlight Health, Inc. ("Castlight") and Xxxxxxx Xxxxxx (“Xxxxxx”).
RECITALS
Xxxxxx is currently employed by Castlight but Xxxxxx and Castlight agree that Xxxxxx will cease employment with Castlight on September 30, 2014.
Xxxxxx and Castlight desire to provide for an orderly mechanism for effecting a separation in order to assure that such separation will occur amicably and efficiently.
AGREEMENT AND RELEASE
ACCORDINGLY, the parties agree as follows:
1.Effective Date; Settlement Terms; and Sum.
(a)This Agreement will be effective and Castlight shall pay Xxxxxx the sum of $129,000 (“Settlement Sum”), on September 30, 2014 provided that he has signed this Agreement on September 30, 2014 (“Effective Date”). Xxxxxx agrees to be solely responsible for any taxes relating to the Settlement Sum and to defend, indemnify and hold Castlight harmless from and against any claims, liabilities or penalties related to any taxes on the Settlement Sum.
(b)Xxxxxx and Castlight agree that Xxxxxx’x last day of employment shall be September 30, 2014.
(c)If Xxxxxx elects under COBRA to continue Xxxxxx’x health insurance benefits, Castlight shall pay the amount owed by the Employee under COBRA for health insurance for the 6-month period following his last day of employment on September 30, 2014.
(d)On September 30, 2014, Castlight shall pay Xxxxxx his full 2014 target bonus in the amount of $154,000 and 25% of his projected full 2015 target bonus in the amount of $38,700, for a total of $192,700, less applicable deductions as required by law.
(e)Castlight has granted Xxxxxx certain options to purchase shares of Castlight’s Class A common stock pursuant to Castlight’s 2008 Stock Incentive Plan (the “2008 Plan”) and Class B common stock pursuant to Castlight’s 2014 Equity Incentive Plan (the “2014 Plan”). Provided that Xxxxxx has signed this Agreement on September 30, 2014, then on the effective date of this Agreement, all options granted to Xxxxxx will accelerate in vesting, such that the total number of shares vested under each option granted to Xxxxxx will be equal to the number of shares that would have vested had Xxxxxx remained employed through March 31, 2015. For clarity, it is acknowledged and agreed that as a result of the preceding sentence, the number of shares vested under each option granted to Xxxxxx will be as follows:
(i)the option to purchase 79,054 shares of Class A common stock granted pursuant to the 2008 Plan on November 9, 2010 will be vested as to all 79,054 shares;
(ii)the option to purchase 79,054 shares of Class A common stock granted pursuant to the 2008 Plan on November 9, 2010 will be vested as to all 79,054 shares;
(iii) the option to purchase 758,536 shares of Class A common stock granted pursuant to the 2008 Plan on November 9, 2010 will be vested as to all 758,536 shares;
(iv) the option to purchase 506,328 shares of Class A common stock granted pursuant to the 2008 Plan on November 9, 2010 will be vested as to all 506,328 shares;
(v)the option to purchase 188,154 shares of Class A common stock granted pursuant to the 2008 Plan on February 12, 2013 will be vested as to zero shares;
(vi)the option to purchase 41,846 shares of Class A common stock granted pursuant to the 2008 Plan on February 12, 2013 will be vested as to 19,166 shares;
(vii)the Option to purchase 11,829 shares of Class B common stock granted pursuant to the 2014 Plan on March 13, 2014 will be vested as to zero shares;
(viii)the option to purchase 108,171 shares of Class B common stock granted pursuant to the 2014 Plan on March 13, 2014 will be vested as to 30,000 shares;
(f) Provided that Xxxxxx has signed this Agreement on September 30, 2014, then Xxxxxx will also have the right to exercise the options set forth above (hereafter collectively referred to as the “Xxxxxx Options”) to the extent vested as of his termination of employment and as a result of the vesting acceleration provided for in paragraph 1(e) above, until May 3, 2015; provided, however, that the Xxxxxx Options will expire immediately upon the closing of a Corporate Transaction (as defined in the 2014 Plan). Any such exercise shall otherwise be in accordance with the terms of the 2008 Plan or 2014 Plan, as applicable, and the stock option agreements evidencing the Xxxxxx Options (hereafter collectively referred to as the “Stock Option Agreements”). Xxxxxx acknowledges and agrees that the foregoing extension to the exercise period will cause each Xxxxxx Option that is an incentive stock option to be reclassified as a non-qualified stock option upon effectiveness of this Agreement and, accordingly, at the time of exercise Xxxxxx will be required to satisfy all applicable tax withholding requirements that become due upon exercise of the Xxxxxx Options.
If Xxxxxx does not sign this Agreement, Castlight will provide Xxxxxx with a termination report with the vesting of the Xxxxxx Options as of Xxxxxx’x termination date and, per the Stock Option Agreements, Xxxxxx will have three (3) months following the termination date to exercise any vested shares and, after such date, Xxxxxx will no longer have a right to exercise the Xxxxxx Options as to any shares. Regardless of whether Xxxxxx signs this Agreement, Xxxxxx’x rights concerning the Xxxxxx Options above will continue to be governed by the Stock Option Agreements, as amended by this Agreement, if applicable and provided this Agreement becomes effective. Xxxxxx acknowledges and agrees that Xxxxxx has no rights in or to Castlight’s capital stock except as set forth herein.
2.Xxxxxx acknowledges and agrees that as an executive officer of Castlight, he may have come into possession of material nonpublic information regarding Castlight, and that in accordance with Castlight’s Xxxxxxx Xxxxxxx Policy and applicable law, he will not trade in Castlight securities until the first open trading window following his cessation of employment, and
will not trade in Castlight securities while otherwise in possession of material nonpublic information.
3.General Release and Specific ADEA Release.
(a) Xxxxxx and his representatives, heirs, successors, and assigns do hereby completely release and forever discharge Castlight, any Affiliate, and its and their present and former shareholders, officers, directors, agents, employees, attorneys, successors, and assigns (collectively, “Released Parties”) from all claims, rights, demands, actions, obligations, liabilities, and causes of action of every kind and character, known or unknown, mature or unmatured, which Xxxxxx may have now or in the future arising from any act or omission or condition occurring on or prior to the effective date of this Agreement (including, without limitation, the future effects of such acts, omissions, or conditions), arising from or in any way related to his employment by Castlight, whether based on tort, contract (express or implied), or any federal, state, or local law, statute, or regulation, including, but not limited to, the matters that were raised or could have been raised in the claim referenced above in the RECITALS (collectively, the “Released Claims”). By way of example and not in limitation of the foregoing, Released Claims shall include any claims arising under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the California Fair Employment and Housing Act, as well as any claims asserting wrongful termination, breach of contract, breach of the covenant of good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, defamation, invasion of privacy, retaliation and claims related to disability. Released Claims shall also include, but not be limited to, claims for severance pay, bonuses, sick leave, vacation pay, life or health insurance, or any other fringe benefit. Xxxxxx likewise releases the Released Parties from any and all obligations for attorneys’ fees incurred in regard to the above claims, or otherwise. Notwithstanding the foregoing, Released Claims shall not include any claims based on obligations created by or reaffirmed in this Agreement or that as a matter of law cannot be released.
(b) In further consideration of the payments and benefits provided to Xxxxxx and his representatives, heirs, successors, and assigns in this Agreement, Xxxxxx hereby irrevocably and unconditionally fully and forever waives, releases and discharges the Released Parties from any and all Claims, whether known or unknown, from the beginning of time to the date of the Xxxxxx'x execution of this Agreement arising under the Age Discrimination in Employment Act (ADEA), as amended, and its implementing regulations. By signing this Agreement, Xxxxxx hereby acknowledges and confirms that: (i) he has read this Agreement in its entirety and understands all of its terms; (ii) he has been advised of and has availed himself of his right to consult with his attorney prior to executing this Agreement; (iii) he knowingly, freely and voluntarily assents to all of the terms and conditions set out in this Agreement including, without limitation, the waiver, release and covenants contained herein; (iv) he is executing this Agreement, including the waiver and release, in exchange for good and valuable consideration in addition to anything of value to which he is otherwise entitled; (v) he was given at least twenty-one (21) days to consider the terms of this Agreement and consult with an attorney of his choice, although he may sign it sooner if desired; (vi) he understands that he has seven (7) days from the date he signs this Agreement to revoke only the release of ADEA claims in this paragraph by delivering notice of revocation to Xxxxxxx Xxxxxxxx, Xx. Director, People Strategy at Castlight, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 by overnight delivery before the end of such seven-day period, but that his release of any and all other claims under this Agreement shall be immediately effective and irrevocable upon his signing of this Agreement; and (vii) he understands that the release contained in this paragraph does not apply to rights and claims that may arise after the date on which he signs this Agreement.
4.Section 1542 Waiver. The parties understand and agree that the Released Claims include not only claims presently known to Xxxxxx, but also include all unknown or unanticipated claims, rights, demands, actions, obligations, liabilities, and causes of action of every kind and character that would otherwise come within the scope of the Released Claims as described in Section 2. Xxxxxx understands that he may hereafter discover facts different from what he now believes to be true, which if known, could have materially affected this Agreement, but he nevertheless waives any claims or rights based on different or additional facts. Xxxxxx knowingly and voluntarily waives any and all rights or benefits that he may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides 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 HIS MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
5.Covenant Not to Xxx. The parties intend for this release to be enforced to the fullest extent permitted by law. Xxxxxx waives his right to file any charge or complaint arising out of his employment with or separation from the Company before any federal, state, or local court or any state or local administrative agency, except where such waivers are prohibited by law, provided, however, that he hereby waives any right to receive any monetary award resulting from such a charge or investigation.
6.Confidential Information, Return of Company Property, Nondisparagement and Non-Solicitation.
(a)Castlight has developed, compiled and owns certain proprietary techniques and confidential information that have great value in its business. This information includes but is not limited to any and all information (in any medium, including but not limited to, written documents and electronic files) concerning unpublished personnel, legal matters, financial data, marketing and sales data, product and product development information, customer lists, employee lists, contracts, licensing agreements, processes, formulas, trade secrets, inventions, discoveries, improvements, data, know‑how, formats, marketing plans, business plans, strategies, forecasts, and supplier and vendor identities, characteristics and agreements (“Confidential Information”). Xxxxxx has had access to confidential information of other employees and vendors of Castlight. Confidential Information includes not only information disclosed by Castlight or its Clients to Xxxxxx in the course of Xxxxxx’x employment with Castlight, but also information developed or learned by Xxxxxx during the course of Xxxxxx’x employment with Castlight. Confidential Information is to be broadly defined.
(b)Xxxxxx acknowledges that during his employment with Castlight he has had access to such Confidential Information. Xxxxxx agrees that at all times after Xxxxxx’x employment with Castlight is terminated, Xxxxxx will (i) hold in trust, keep confidential, and not disclose to any third party or make any use of the Confidential Information of Castlight or its other employees; (ii) not cause the transmission, removal or transport of Confidential Information of Castlight or its other employees; (iii) not publish, disclose, or otherwise disseminate Confidential Information of Castlight or its other employees.
(c)Xxxxxx agrees to promptly inform Castlight of all documents and data pertaining to his employment and the Confidential Information of Castlight and its other employees, whether prepared by Xxxxxx or otherwise coming into his possession or control. Xxxxxx agrees to promptly deliver to
Castlight all such written, electronic or other tangible material containing any information concerning or disclosing the Confidential Information of Castlight or its other employees or vendors. Xxxxxx agrees that he is not entitled to any of the benefits of this Agreement until he is in compliance with this Section 6. (c).
(d)Xxxxxx agrees to promptly deliver to Castlight all company property including any keys, books, records, credit cards, company-purchased cell phones and any other tangible property which has come into his possession or control during the term of his employment, save and except for Xxxxxx’x records of his payroll and employment-related tax documents; provided, however, that Castlight agrees Xxxxxx may retain, and is hereby transferred ownership of, the Castlight-issued computer equipment, consisting of two laptop computers and an ipad, used during his employment (subject to a security sweep to remove Castlight information and software, which the parties acknowledge has been completed), and Xxxxxx agrees that Castlight may retain, and is hereby transferred ownership of, the furnishings purchased by Xxxxxx that is located in the Castlight corporate apartment. Xxxxxx agrees that he is not entitled to any of the benefits of this Agreement until he is in compliance with this Section 6. (d).
(e)Xxxxxx acknowledges and agrees that the covenants contained in this Section 6 are material to this Agreement and that a violation of this Section shall constitute a material breach of this Agreement. Castlight shall be entitled to receive injunctive relief to enforce these covenants, and may seek any other remedy available to it by law.
(f) Xxxxxx agrees that he shall not disparage the Released Parties to anyone, including but not limited to, employees and former employees, media or other third parties, or otherwise make statements or take actions which would place the Released Parties, or any of them, in a negative light. Similarly, Xxxxxx will not disparage any Castlight product or service to anyone, including but not limited to, employees and former employees, media or other third parties, or otherwise make statements or take actions which would place such service in a negative light. Additionally, Castlight agrees that it’s current Officers and Directors as defined in Section 16 of the Securities Exchange Act of 1934 shall not disparage Xxxxxx to anyone, including but not limited to, Castlight employees, and former employees, media or other third parties, or otherwise make statements or take actions which would place Xxxxxx in a negative light.
(g)Xxxxxx acknowledges that, because of his responsibilities at Castlight, he has been exposed to Castlight’s business strategies, information on customers and clients, and other valuable Proprietary Information and trade secrets, and that use or disclosure of such Proprietary Information and trade secrets in breach of this Agreement would be extremely difficult to detect or prove. He also acknowledges that Castlight’s relationships with its employees, customers, clients, vendors, and other persons are valuable business assets. Therefore, Xxxxxx agrees as follows:
(i) Xxxxxx shall not, for a period of one year following termination of his employment with Castlight, directly or indirectly solicit, induce, recruit, or encourage any officer, director, or employee of Castlight to leave Castlight or terminate his or her employment with Castlight.
(ii) Xxxxxx shall not, for a period of one year following the termination of his employment with Castlight for any reason: (i) use Castlight’s Proprietary Information or trade secrets to interfere with any business relationship or contract between Castlight and any of its customers, clients, vendors, business partners, or suppliers; or (ii) for the purpose of selling products or services competitive with Castlight’s, solicit any person, firm, corporation or entity that was a customer or client or prospective client of Castlight at any time during the one-year period preceding the termination date of my employment by using
Castlight’s Proprietary Information or trade secrets, or otherwise soliciting such customers by using means that amount to unfair competition.
7.Confidentiality. Xxxxxx understands and agrees that this Agreement and each of its terms, and the negotiations surrounding it, are confidential and shall not be disclosed by Xxxxxx to any entity or person, except Xxxxxx’x wife and tax attorney, accountant or other attorney, for any reason, at any time, without the prior written consent of Castlight, unless required by law.
8.Nonadmission. The parties understand and agree that this is a compromise settlement of disputed claims and that the furnishing of the consideration for this Agreement shall not be deemed or construed at any time or for any purpose as an admission of liability by Castlight. The liability for any and all claims is expressly denied by Castlight.
9.Integration. The parties understand and agree that the preceding Sections recite the sole consideration for this Agreement; that no representation or promise has been made by Castlight, or any other Released Party on any subject whatsoever, except as expressly set forth in this Agreement; and that all agreements and understandings between the parties on any subject whatsoever are embodied and expressed in this Agreement. This Agreement shall supersede all prior or contemporaneous agreements and understandings among Xxxxxx, Castlight, and any other Released Party, whether written or oral, express or implied, with respect to any subject whatsoever, including without limitation, any employment-related agreement or benefit plan, except to the extent that the provisions of any such agreement or plan have been expressly referred to in this Agreement as having continued effect.
10.Amendments; Waivers. This Agreement may not be amended except by an instrument in writing, signed by each of the parties. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity.
11.Assignment; Successors and Assigns. Xxxxxx agrees that he will not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any rights or obligations under this Agreement. Any such purported assignment, transfer, or delegation shall be null and void. Xxxxxx represents that he has not previously assigned or transferred any claims or rights released by his pursuant to this Agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, successors, attorneys, and permitted assigns. This Agreement shall also inure to the benefit of any Released Party. This Agreement shall not benefit any other person or entity except as specifically enumerated in this Agreement.
12.Severability. If any provision of this Agreement, or its application to any person, place, or circumstance, is held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.
13.Attorneys’ Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.
14.Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of California.
15.Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit or against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement.
16.Representation by Counsel. The parties acknowledge that (i) they have had the opportunity to consult counsel in regard to this Agreement; (ii) they have read and understand the Agreement and they are fully aware of its legal effect; and (iii) they are entering into this Agreement freely and voluntarily, and based on each party’s own judgment and not on any representations or promises made by the other party, other than those contained in this Agreement.
Dated 9/30/2014 | /s/Xxxxxxx Xxxxxx |
Dated 9/30/2014 | CASTLIGHT HEALTH By:/s/ Xxxx X. Xxxxx |
