EXHIBIT (e)(7)
SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and entered into
by and between ROGUE WAVE SOFTWARE, INC. ("Rogue Wave") and XX. XXXXXXXX X.
XXXXX (collectively "parties") as of the Execution Date of this Agreement
defined in paragraph 25 below. This agreement shall become effective if Ms.
Brush's employment is terminated for any reason other than for cause within one
year of a change of control. For the purposes of this agreement "Change of
Control" means the occurrence of any of the following events:
Any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company's
then outstanding voting securities;
A change in the composition of the Board occurring within a twelve-month
period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors who
either (A) are directors of the Company as of the date hereof, or (B)
are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but shall not include an
individual whose election or nomination is in connection with an actual
or threatened proxy contest relating to the election of directors to the
Company);
The consummation of a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation that would
result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity or
such surviving entity's parent) at least fifty percent (50%) of the
total voting power represented by the voting securities of the Company
or such surviving entity or such surviving entity's parent outstanding
immediately after such merger or consolidation;
The consummation of the sale or disposition by the Company of all, or
seventy-five percent (75%) or more of the Company's assets.
I. RECITALS
WHEREAS, effective as of [DATE OF SEPARATION], Ms. Brush's employment
with Rogue Wave as Chief Executive Officer, and any and all other positions she
may have held with Rogue Wave shall cease; and
WHEREAS, the parties wish to make the separation amicable but
conclusive on the terms and conditions set forth herein; and
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WHEREAS, Ms. Brush accepts the benefits of this Separation and Release
Agreement with the acknowledgment that by its terms she has been fully and
satisfactorily compensated.
II. COVENANTS
THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, it is hereby agreed by and between the parties
hereto as follows:
1. SEPARATION. Ms. Brush's employment with Rogue Wave as Chief
Executive Officer, and any and all other positions she may have held with Rogue
Wave, shall cease effective as of [Separation Date]("Separation Date").
2. 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. Ms. Brush acknowledges and agrees that Ms. Brush is
solely responsible to inform Rogue Wave in writing of Ms. Brush's new address
should Ms. Brush change her residence and that failure to do so may result in
Ms. Brush not receiving benefits under this Agreement.
(a) PAYMENT. Rogue Wave agrees to pay Ms. Brush fifty-two
weeks of regular salary (base salary only) calculated at the same rate of
regular salary most recently applicable to Ms. Brush immediately prior to the
Separation Date, less all legally required deductions and withholdings
("Payment"). The Payment shall be made in a lump sum, payable within 14 days of
the Execution Date of this Agreement. The Payment shall be by check and
delivered by mail, overnight delivery, or hand delivery, at the sole option of
Rogue Wave.
(b) INSURANCE. To the extent permitted by the federal COBRA
law, applicable state laws, and the insurance policies and rules applicable to
Rogue Wave, Ms. Brush will be eligible to continue her health insurance benefits
and, later, to convert to an individual policy. Ms. Brush acknowledges that
Rogue Wave has provided her with a COBRA notification form setting forth Ms.
Brush's rights and responsibilities with regard to COBRA coverage. Should Ms.
Brush timely elect to continue coverage pursuant to COBRA, Rogue Wave agrees to
pay on a monthly basis for a period of one year ("COBRA Reimbursement Period,"
unless this obligation is terminated earlier as set forth in this Agreement, for
the COBRA premiums Ms. Brush pays in order to maintain health insurance coverage
during the COBRA Reimbursement Period that is substantially equivalent to that
which Ms. Brush received immediately prior to the Separation Date. Should Ms.
Brush obtain employment during the COBRA Reimbursement 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 Ms.
Brush's new employer. Ms. Brush agrees to notify Rogue Wave in writing in the
event that Ms. Brush obtains employment. In any event, and notwithstanding any
provision to the contrary on this paragraph, Rogue Wave's obligations under this
paragraph shall forever cease no later than by the end of the COBRA
Reimbursement Period.
(c) OTHER COMPENSATION. Except as expressly provided herein,
Ms. Brush acknowledges and agrees that Ms. Brush will not receive (nor is Ms.
Brush entitled to receive) any additional consideration, payments,
reimbursements, incentive payments, stock, equity
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interests or benefits of any kind. Ms. Brush further acknowledges and agrees
that on or before the Separation Date Rogue Wave paid to Ms. Brush in full any
and all wages, salary, accrued but unused vacation, floating holiday accrued but
not taken, personal time off, bonuses, stock options, incentive payments and
compensation due and owing, if any, as of the Separation Date.
3. INSURANCE. To the extent permitted by the federal COBRA law and the
insurance policies and rules applicable to Rogue Wave, Ms. Brush will be
eligible to continue her health insurance benefits at her own expense and,
later, to convert to an individual policy. Ms. Brush acknowledges that Rogue
Wave has provided her with a COBRA information form setting forth Ms. Brush's
rights and responsibilities with regard to COBRA coverage.
4. DENIAL OF LIABILITY. The parties acknowledge that any payment by
Rogue Wave and any release by Ms. Brush pursuant to this Agreement are made to
ensure that the separation is amicable, that in making any such payment or
release, Rogue Wave and Ms. Brush in no way admit any liability to each other
and that they expressly deny any such liability.
5. NONDISPARAGEMENT. Ms. Brush and Rogue Wave agree that neither party
will at any time disparage the other to third parties in any manner likely to be
harmful to the other party, their business reputation, or the personal or
business reputation of its directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process.
6. ROGUE WAVE PROPERTY. Prior to the Separation Date, Ms. Brush agrees
to return to Rogue Wave all Rogue Wave documents (and all copies thereof) and
any and all other Rogue Wave property in Ms. Brush's possession, custody or
control, including, but not limited to, financial information, customer
information, customer lists, employee lists, Rogue Wave files, cellular
telephones, contracts, drawings, records, business plans and forecasts,
financial information, specifications, computer-recorded information, software,
tangible property, 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).
7. CONFIDENTIALITY. The provisions of this Agreement shall be held in
strictest confidence by Ms. Brush and Rogue Wave and shall not be publicized or
disclosed in any manner whatsoever. Notwithstanding the prohibition in the
preceding sentence: (a) the parties may disclose this Agreement in confidence to
their respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (b) Rogue Wave may disclose this Agreement as necessary to fulfill
standard or legally required corporate reporting or disclosure requirements; (c)
Rogue Wave may disclose this Agreement upon request from any government entity;
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.
8. BUSINESS EXPENSE REIMBURSEMENT. Rogue Wave agrees to reimburse Ms.
Brush for those reasonable business expenses she necessarily incurred in her
capacity as a Rogue Wave employee as of the Separation Date consistent with
Rogue Wave's policies in this regard. Ms. Brush acknowledges and agrees that
Rogue Wave will not reimburse her for any expenses
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she incurred after the Separation Date. Ms. Brush must submit the necessary
documentation establishing the amount, date and reason for expenses she incurred
and for which she seeks reimbursement no later than 15 days after the Execution
Date of this Agreement.
(a) REFERENCES. To coordinate Rogue Wave's response to any
inquiries from prospective employers seeking employment references concerning
Ms. Brush, Ms. Brush agrees to direct such prospective employers exclusively to
Human Resources for Rogue Wave. Should Human Resources receive an inquiry, Human
Resources shall confirm Ms. Brush's period of employment with Rogue Wave, the
position she held, and the latest salary that she received as an employee
9. NONDISCLOSURE OF PROPRIETARY INFORMATION. Ms. Brush agrees and
acknowledges that she continues to be bound by the terms of the Proprietary
Information and Inventions Agreement between Ms. Brush and Rogue Wave, executed
by Ms. Brush on February 21, 2003, a copy of which is attached hereto as Exhibit
A and which is incorporated herein as if set forth in full. Nothing in this
paragraph should be construed to narrow the obligations of Ms. Brush imposed by
any other agreement, law or other source.
10. RELEASE OF CLAIMS BY MS. BRUSH. For the consideration set forth in
this Agreement and the mutual covenants of Rogue Wave and Ms. Brush, Ms. Brush
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 Ms. Brush's 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; attorney's fees under Title VII of the federal Civil Rights
Act of 1964, as amended, or any other statute, agreement or source of law; the
federal Americans with Disabilities Act of 1990; the Family and Medical Leave
Act; the Employee Retirement Income Security Act; the Colorado Discrimination
and Unfair Employment Act, tort law; contract law; wrongful discharge;
discrimination; harassment; fraud; misrepresentation; defamation; libel;
emotional distress; and breach of the implied covenant of good faith and fair
dealing.
11. TAX CONSEQUENCES. Ms. Brush 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 Ms. Brush pursuant to this
Agreement.
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12. VOLUNTARY AND KNOWINGLY. Ms. Brush acknowledges that in executing
this Agreement, Ms. Brush has reviewed it and understands its terms and has had
an opportunity and was advised to seek guidance from counsel of Ms. Brush's own
choosing, and was fully advised of Ms. Brush's rights under law, and acted
knowingly and voluntarily.
13. 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.
14. ENTIRE AGREEMENT. Except for those agreements expressly referenced
herein, this Agreement, including all Exhibits hereto, constitutes the complete,
final and exclusive embodiment of the entire agreement between Ms. Brush 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 Ms. Brush and a duly authorized officer of Rogue Wave.
15. SUCCESSORS AND ASSIGNS. This Agreement, including all Exhibits
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.
16. APPLICABLE LAW. The parties agree and intend that this Agreement be
construed and enforced in accordance with the laws of the State of Colorado.
17. FORUM. Any controversy arising out of or relating to this Agreement
or the breach thereof, or any claim or action to enforce this Agreement or
portion thereof, or any controversy or claim requiring interpretation of this
Agreement must be brought in a forum located within the State of Colorado. No
such action may be brought in any forum outside the State of Colorado. Any
action brought in contravention of this paragraph by one party is subject to
dismissal at any time and at any stage of the proceedings by the other, and no
action taken by the other in answering, defending, counter claiming, appealing
or otherwise shall be construed as a waiver of this right to immediate
dismissal. A 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 a forum located within the State of Colorado.
18. 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.
19. ENFORCE ACCORDING TO TERMS. The parties intend this Agreement to be
enforced according to their terms.
20. EXECUTION DATE. This Agreement is effective on the later of the
dates that each party signed this Agreement ("Execution Date").
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21. 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.
22. EXPIRATION. Unless otherwise agreed to by Rogue Wave in writing
signed by an authorized Rogue Wave representative, this agreement must be
executed by Ms. Brush and delivered to Rogue Wave no later than [date (45 days
after separation date] 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:
XX. XXXXXXXX X. XXXXX ROGUE WAVE SOFTWARE, INC.,
An individual a corporation
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxx Xxxx X. Xxxxxx
Its: Vice President, Human
Resources and Administration
Date: September 17, 2003 Date: September 17, 2003
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