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Exhibit
10.1
SEVERANCE &
RELEASE AGREEMENT
This Severance Agreement and
Release (“Agreement”) is made by and between Openwave
Systems Inc. (the “Company”), and John Boden
(“Employee”).
WHEREAS, Employee has been
employed by the Company since July 5, 2007, most recently in
the position of SVP, Product Management;
WHEREAS, the Company and
Employee have entered into a Confidential Information and Invention
Assignment Agreement (the “Confidentiality Agreement”)
which is incorporated herein by reference;
WHEREAS, Employee is an
eligible Participant in the Openwave Executive Severance Benefit
Plan (the “Plan”) which is incorporated herein by
reference;
NOW THEREFORE, in
consideration of the mutual promises made herein, the Company and
Employee (collectively referred to as “the Parties”)
hereby agree as follows:
A. Last Date Worked .
Employee’s last date worked for the Company shall be
June 19, 2008 (“Last Date Worked”). Employee shall
not be required or permitted to work beyond the Last Date
Worked.
B. Final Date of
Employment . Employee’s employment with the Company will
end on June 19, 2008, or earlier as permitted herein (the
actual end date of employment is referred to herein as the
“Final Date of Employment”).
C. Transition Period .
From the date of this Agreement through the Final Date of
Employment (the “Transition Period”), Employee shall
continue to perform duties as assigned and consistent with his role
as SVP, Product Management in a professional and competent manner.
During the Transition Period, the Employee’s employment is
and shall continue to be at will, as defined under applicable
law.
D. Incentive
Compensation . Company represents that Employee is a
Participant in the Fiscal Year 2008 Corporate Incentive Plan
(“CIP”) and will be entitled to the minimum 50% payout
for the period March 1, 2008 through June 19,
2008.
E. Consideration .
Provided Employee’s employment with the Company does not
terminate for Cause prior to June 19, 2008, and has complied
with Paragraph G below, the Company agrees to provide Employee with
the following severance benefits:
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1. |
Within 15 days of the effective date of this Agreement as
specified in paragraph W of this Agreement, the Company shall pay
to Employee severance compensation in the form of a lump sum
payment equal to $206,250.00, which consists of six (6) months
base salary plus 25% of your annual bonus target; customary payroll
taxes and income tax withholding will be deducted from this lump
sum payment; and |
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2. |
On the Final Date of Employment the Company shall waive the
Company’s right to repurchase Employee’s restricted
stock awards as follows: |
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a. |
Grant No. 18207 granted on July 16, 2007 as to 2,083
shares |
Employee shall continue
vesting of all other stock options and restricted stock through the
Final Date of Employment, and shall have no entitlement to vesting
of stock options after the Final Date of Employment.
Employee’s entitlement to exercise vested stock options
following the Final Date of Employment shall be governed by the
terms of the applicable Stock Option Agreements and
Plans.
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3. |
to provide Employee and his/her eligible dependents, at
Company’s expense (on an after-tax basis to Employee), with
medical, dental, and vision insurance benefit coverage in
coordination with COBRA for a period of six (6), provided
Employee executes and timely returns all necessary COBRA election
documentation which will be sent to Employee after
Employee’s Final Date of Employment; thereafter, if Employee
wishes to continue such COBRA coverage, Employee will be required
to pay all requisite premiums for such continued
coverage. |
F. Conditions of
Payment . Company’s obligation to make payment and
provide benefits under Paragraph E is conditioned on the
following:
1. The offer to pay severance
compensation as set forth in Paragraph E(1) is subject to Employee
not receiving an offer of comparable employment with Company on or
before the Final Date of Employment.
2. Should Employee be
offered and accept re-employment with the Company within six
(6) months of the Final Date of Employment, Employee shall
promptly repay the Company an amount equal to the difference
between (i) net severance compensation divided by six
(6) months of severance (“Per Month Severance
Compensation”), less (ii) the Per Month Severance
Compensation times the number of Months which have passed since the
Final Date of Employment and Employee’s
rehire. Furthermore, to the extent that Company has any
ongoing obligations under Paragraph E(3), such obligations shall
cease upon the date of Employee’s re-employment with
Openwave.
G. Confidential
Information and Company Property . Employee shall maintain the
confidentiality of the terms of this Agreement and shall continue
to maintain all confidential and proprietary information of the
Company and shall continue to comply with the terms and conditions
of the Confidentiality Agreement at all times during and after his
employment with the Company. Employee shall return, in good working
condition, all Company property and confidential and proprietary
information in his possession to the Company on or before the Final
Date of Employment.
H. Expense Reports .
Company agrees that it will pay all reasonable expenses incurred by
Employee as part of his employment consistent with the provisions
of Company’s Travel and Expense reimbursement policy.
Employee agrees that he shall submit all expense reports to Company
no later than sixty (60) days following the Final Date of
Employment.
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I. Release of Claims .
In exchange for the consideration described in Paragraph E above,
Employee, on behalf of himself, and his heirs, family members,
executors, administrators and affiliates, and assigns, hereby fully
and forever releases the Company and its officers, directors,
employees, investors, stockholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations,
insurers, and assigns, from, any claim, duty, obligation or cause
of action relating to any matters of any kind, whether presently
known or unknown, suspected or unsuspected, arising from any
omissions, acts or facts that have occurred up until and including
the date on which this Agreement is signed by Employee including,
without limitation,
1. any and all claims
relating to or arising from Employee’s employment
relationship with the Company or the termination of that
relationship;
2. 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;
3. 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; promissory estoppel; negligent or intentional
infliction of emotional distress; fraud; 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
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