EXHIBIT 10.28
April 7, 2004
Xx. Xxxxxx Xxxxxx
[Address]
[Address]
PERSONAL AND CONFIDENTIAL
Dear Xxx:
This letter sets forth the substance of the separation agreement (the
"Agreement") which Vitria Technology. Inc. (the "Company") is offering to you to
aid in your employment transition.
NOTIFICATION DATE: April 2, 2004
Prior to the separation date, you will be expected to complete the
following tasks:
- Transition all marketing responsibilities to Xxxx
Xxxxxxxx - in coordination with Xxxx Xxxxxxxx
- Complete the performance evaluation process - Deliver
all performance reviews
- Complete the salary administration process
SEPARATION DATE: May 14, 2004
SEVERANCE PAYMENT:
- 20 weeks of pay, subject to standard deductions and
withholdings
- Medical, dental and vision benefits through October 31,
2004
RETURN DATE: You will have until April 28th, 2004 to accept this
Waiver/Severance Agreement.
In accordance with the Age Discrimination in Employment Act (the "ADEA"), you
have a period of 21 days in which to consider the terms of this Agreement and 7
days, after signing this Agreement, in which you may choose to revoke your
acceptance of its terms. If you exercise this right of revocation, you must put
the revocation in writing and deliver or mail it to the Company within the seven
(7) day revocation period. A mailed revocation must be postmarked within the
seven (7) day revocation period and properly addressed to the Company, to the
attention of the individual who has signed this letter. You are advised to
consult an attorney before waiving any rights that you may have under the ADEA.
Eight (8) days after both parties have signed this Agreement (the "Effective
Date"), its terms will automatically become effective provided that you have
returned the Agreement to the individual who has signed this letter, unless you
have revoked your acceptance of the terms. The Company will mail the severance
payment to you ten (10) business days after the Separation Date.
1. SEPARATION. Your last day of employment with the Company is May 14,
2004 (the "Separation Date"). On the Separation Date, you will be
paid all accrued salary, and all accrued and unused vacation earned
through the Separation Date, subject to standard deductions and
withholdings. You are entitled to these payments regardless of
whether you sign this Agreement.
2. SEVERANCE. Although the Company has no policy or procedure requiring
payment of any severance benefits, if you sign this Agreement and
comply with your obligations herein, the Company will make the
severance payment as set forth above.
3. HEALTH INSURANCE. 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.
4. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any
additional compensation, severance or benefits after the Separation
Date.
5. STOCK OPTIONS. You expressly acknowledge and agree that your Company
stock options cease vesting the day after the Separation Date. You
must exercise vested shares, pursuant to the terms of Vitria
Technology, Inc.'s EQUITY INCENTIVE PLAN, within ninety (90) days
after the Separation Date.
6. EXPENSE REIMBURSEMENTS. You agree that within thirty (30) days of
the Separation Date, you will submit your final documented expense
reimbursement statement to Human Resources reflecting all business
expenses you incurred through the Separation Date, if any, for which
you seek reimbursement. The Company will reimburse you for these
expenses pursuant to its regular business practice.
7. RETURN OF COMPANY PROPERTY. You agree to return to the Company on or
before the Separation Date or on a date otherwise agreed to in
writing with the Company, all Company property which you have had in
your possession at any time, including, but not limited to, Company
files, notes, drawings, records, business plans and forecasts,
financial information, specifications, computer-recorded
information, tangible property (including, but not limited to,
computers), credit cards, entry cards, identification badges and
keys; and any materials of any kind which contain or embody any
proprietary or confidential information of the Company (and all
reproductions thereof). Failure to return Company property as
specified herein shall entitle Vitria Technology, Inc. to withhold
severance benefits pursuant to this Agreement.
8. PROPRIETARY INFORMATION OBLIGATIONS. Both during and after your
employment you will refrain from any use or disclosure of the
Company's proprietary or confidential information or materials, and
you acknowledge that you continue to be bound by the terms of the
Company's Confidentiality Agreement attached hereto as Exhibit A.
9. CONFIDENTIALITY. The provisions of this Agreement shall be held in
strictest confidence by you and the Company and shall not be
publicized or disclosed in any manner whatsoever; provided, however,
that: (a) you may disclose this Agreement to your immediate family;
(b) the parties may disclose this Agreement in confidence to their
respective attorneys, accountants, auditors, tax preparers, and
financial advisors; (c) the Company may disclose this Agreement as
necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; 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.
10. NONDISPARAGEMENT. You agree that you will not at any time disparage
the Company or its directors, officers, shareholders, agents, or
employees in any manner likely to be harmful to the personal or
business reputation of it or them, and the Company (through its
officers and directors) agrees that it will not disparage you in any
manner likely to be harmful to your personal or business reputation,
provided that both you and the Company shall respond accurately and
fully to any question, inquiry, or request for information when
required by legal process.
11. RELEASE. In exchange for the consideration provided to you by this
Agreement that you are not otherwise entitled to receive, you hereby
generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, parent and subsidiary entities, insurers,
affiliates, and assigns from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any
way related to events, acts, conduct, or omissions occurring prior
to or on the date you sign this Agreement. This general release
includes, but is not limited to: (1) all claims arising out of or in
any way related to your employment with the Company or the
termination of that employment; (2) all claims related to your
compensation or benefits from the Company, including salary,
bonuses, commissions. vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other
ownership interests in the Company; (3) all claims for breach of
contract, wrongful termination, and breach of the implied covenant
of good faith and fair dealing; (4) all tort claims, including
claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (5) 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, the
federal Age Discrimination in Employment Act of 1967 (as amended)
("ADEA"), and the California Fair Employment and Housing Act (as
amended).
12. ADEA WAIVER. [FOR EMPLOYEES 40 YEARS OF AGE OR OLDER.] YOU
ACKNOWLEDGE THAT YOU ARE KNOWINGLY AND VOLUNTARILY WAIVING AND
RELEASING ANY RIGHTS YOU MAY HAVE UNDER THE ADEA. YOU ALSO
ACKNOWLEDGE THAT THE CONSIDERATION GIVEN FOR THE WAIVER AND RELEASE
IN THE PRECEDING PARAGRAPH HEREOF IS IN ADDITION TO ANYTHING OF
VALUE TO WHICH YOU ARE ALREADY ENTITLED. YOU FURTHER ACKNOWLEDGE
THAT YOU HAVE BEEN HEREBY ADVISED, AS REQUIRED BY THE ADEA, THAT
YOUR WAIVER AND RELEASE DO NOT APPLY TO ANY RIGHTS OR CLAIMS THAT
MAY ARISE AFTER THE EXECUTION DATE OF THIS AGREEMENT.
13. SECTION 1542 WAIVER. In giving the releases set forth in this
Agreement, which includes 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 of
any jurisdiction of similar effect with respect to your release of
any unknown or unsuspected claims.
14. MISCELLANEOUS. This Agreement, including Exhibit A, constitutes the
complete, final and exclusive embodiment of the entire agreement
between you and the Company with regard to this 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 may not be modified or amended except in writing
signed by both you and a duly authorized officer of the Company.
This Agreement shall 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 shall be modified by the court so as to be
rendered enforceable. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with
the laws of the State of California as applied to contracts made and
to be performed entirely within California.
If this Agreement is acceptable to you, please sign below and return it to me.
I wish you the best in your future endeavors.
Sincerely,
VITRIA TECHNOLOGY, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
VP, Human Resources
ACCEPTED AND AGREED:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
April 7, 2004
Date
EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
