Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation
Agreement and Release (“Agreement”) is made by and
between SeeBeyond Technology Corporation (the
“Company”), and Thor Culverhouse
(“Employee”).
WHEREAS, Employee
was employed by the Company as Senior Vice President, North America
Sales;
WHEREAS, the
Company and Employee have entered into a Employment Agreement and
Handbook Agreement (the “Confidentiality
Agreement”);
WHEREAS, the
Company and Employee have agreed to end the employment relationship
effective March 31, 2005 (this date shall be referred to as
“the Separation Date”);
WHEREAS, Employee
acknowledges that he has been exposed to and is privy to
confidential information and numerous Company trade secrets
including, but not limited to, those related to the development and
implementation of ICAN Suite 5.0. Employee further
acknowledges that the disclosure of said confidential information
and trade secrets could cause permanent and irreparable damage to
the Company.
NOW THEREFORE, in
consideration of the mutual promises made herein, the Company and
Employee (collectively referred to as “the Parties”)
hereby agree as follows:
1.
Consideration . The Company and employee agree as
follows:
A.
On the Separation Date, employee was separated from the company and
received all compensation due to him, including his final paycheck
and accrued but unused vacation pay and no further payments are due
to employee for wages and or reimbursable expenses incurred prior
to the Separation Date;
B.
Employee’s benefits, including medical and dental insurance,
will remain if full force and effect up to and including
September 30, 2005. Thereafter, employee will have the
ability to elect COBRA if he so elects;
C.
Upon receipt of this signed Separation Agreement and Release, and
return of all Company property (including, but not limited to,
computers, cell phones, AMEX Cards, keys, and the like) Employee
will be entitled to receive: $200,000.00 less standard
withholdings, payable as follows: the $200,000.00 will be paid over
a six (6) month period. This six (6) month period shall
be referred to as the “Severance Period”. Such payment
will be processed in the ordinary course of business, on the
established payroll dates of the Company, beginning on the first
regularly scheduled payroll period after the revocation periods set
forth in Section 4 herein have expired. The payment of
the $200,000.00 shall be treated as wages. In addition, Employee
will receive a payment in the amount of $45,981.00, representing
Employee’s Q1 2005 Bonus/Commission compensation calculated
in accordance with Exhibit A (“Q1 2005 Bonus/Commission
Payment”). The Q1 2005 Bonus/Commission Payment will be
paid through the established payroll of the Company on
April 30, 2005;
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D.
Employee’s unvested stock options will be canceled on the
Separation Date pursuant to the terms and conditions set forth in
the SeeBeyond Stock Option Plan. Employee will have 90 days
from the end of the Severance Period to exercise any stock options
(if any) that were vested and outstanding as of the Separation
Date; thereafter, all such stock options will be cancelled;
Throughout the
Severance Period, Employee agrees to cooperate with the Company in
the event the Company needs information and/or documentation and/or
reasonable services.
2. Confidential
Information . Employee shall continue to maintain
the confidentiality of all confidential and proprietary information
of the Company including the fact of this resolution of the
disputes between the parties and shall continue to comply with the
terms and conditions of the Computer Code Agreement, Employment
Agreement and Handbook Agreement between Employee and the Company
copies of which are attached and incorporated herein fully by
reference. Employee acknowledges he has refreshed his
recollection of his obligations to SeeBeyond including but not in
any way limited to the provisions regarding his confidentiality
obligations.
3. Release of
Claims . Employee agrees that the foregoing
consideration represents settlement in full of all outstanding
obligations owed to Employee by the Company. Employee, on
behalf of himself, and his respective heirs, family members,
executors and assigns, hereby fully and forever releases the
Company and its respective officers, directors, employees,
investors, attorneys, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations,
and assigns, from, and agrees not to sue concerning, any claim,
duty, obligation or cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected,
that he may possess arising from any omissions, acts or facts that
have occurred up until and including the Effective Date of this
Agreement including, without limitation,
(a)
any and all claims relating to or arising from Employee’s
employment relationship (including but not limited to claims for
wages and salary with the Company and the termination of that
relationship;
(b)
any and all claims relating to, or arising from, Employee’s
right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any
state or federal law;
(c)
any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach
of contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; negligent or
intentional infliction of emotional distress; negligent or
intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false
imprisonment; and conversion;
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(d)
any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit
Protection Act; the California Fair Employment and Housing Act, and
Labor Code section 201, et
seq . and section 970, et seq .;
(e)
any and all claims for violation of the federal, or any state,
constitution;
(f)
any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g)
any and all claims for attorneys’ fees and costs.
Employee agrees that
the release set forth in this section shall be and remain in
effect in all respects as a complete general release as to the
matters released. This release does not extend to any
obligations incurred under this Agreement.
4. Acknowledgment of
Waiver of Claims under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may
have under the Age Discrimination in Employment Act of 1967
(“ADEA”) and that this waiver and release is knowing
and voluntary. Employee and Company agree that this waiver
and release does not apply to any rights or claims that may arise
under ADEA after March 31, 2005. Employee
acknowledges that the consideration given for this waiver and
Release is in
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