SEPARATION AGREEMENT AND GENERAL
RELEASE
This Separation
Agreement and General Release (this “Agreement”) is
hereby entered into by and between Diane N. Brundage, an individual
(the “Executive”), and DDi Corp., a Delaware
corporation, on behalf of itself and all of its subsidiaries
(collectively, “the Company”).
A. The
Executive has been employed by the Company pursuant to an Offer
Letter by and between the Company and the Executive dated
September 29, 2006 (the “Offer Letter”), serving
as Senior Vice President — Sales of the Company;
and
B. The
Executive and the Company have entered into a Severance Agreement
dated October 10, 2005 (the “Severance
Agreement”); and
C. The
Executive’s employment with the Company and any of its
parents, direct or indirect subsidiaries, affiliates, divisions or
related entities (collectively referred to herein as “the
Company and its Related Entities”) will be ended on the terms
and conditions set forth in this Agreement.
In consideration
of the mutual promises contained herein and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as
follows:
1.
Effective Date . Except as otherwise provided herein, this
Agreement shall be effective on the eighth day after it has been
executed by both of the parties (the “Effective
Date”).
2. End of
Employment . The Executive’s employment with the Company
and its Related Entities has ended or will end, effective as of
5:00 P.M. Pacific Time, on March 31, 2006 (the
“Termination Date”).
3.
Continuation of Benefits After the Termination Date . Except
as expressly provided in this Agreement or in the plan documents
governing the Company’s employee benefit plans, after the
Termination Date, the Executive will no longer be eligible for,
receive, accrue, or participate in any other benefits or benefit
plans provided by the Company and its Related Entities, including,
without limitation, medical, dental and life insurance benefits,
and the Company’s 401(k) retirement plan; provided, however,
that nothing in this Agreement shall waive the Executive’s
right to any vested amounts in the Company’s 401(k)
retirement plan, which amounts shall be handled as provided in the
plan.
4. COBRA
Benefits . The Company shall provide reimbursement of insurance
premiums payable to continue Executive’s group health for the
first twelve (12) months following the Termination Date,
including coverage pursuant to the provisions of
COBRA, if
applicable, as long as the Executive has not revoked this Agreement
as provided in Section 15(c), below, and the Company’s
counsel has received a signed original of this
Agreement.
5. Normal
Salary Through Termination Date . Within one business day after
the Termination Date, the Company shall pay the Executive the
prorated portion of her salary earned through the Termination
Date.
6.
Severance Payments . In return for the Executive’s
promises in this Agreement, the Company will provide Executive with
a severance payment in the gross amount of $225,000, which is equal
to twelve (12) months of salary (“Severance
Payment”), less deductions required by law. The foregoing
amount shall be paid as salary continuation on regularly scheduled
payroll dates for the duration of the 12 month period
following the Termination Date (the “Severance
Period”), as long as the Executive has not revoked this
Agreement as provided in Section 15(c), below, and the
Company’s counsel has received a signed original of this
Agreement. The payments shall be made, at the option of the
Executive, by checks mailed to the Executive or direct deposit to
an account specified by her.
7. Stock
Options . Any outstanding unvested stock options and restricted
stock previously granted to Executive shall be forefeited as of the
Termination Date in accordance with the terms of the
Company’s 2005 Stock Incentive Plan.
8. Effect
of Subsequent Employment . If the Executive accepts employment
any time prior to the expiration of the Severance Period, the
Company’s obligation to pay premiums for insurance coverage
under COBRA or otherwise will be extinguished as of the date the
Executive becomes eligible for coverage under the group health plan
of the Executive’s new employer.
9.
Acknowledgement of Total Compensation and Indebtedness . The
Executive acknowledges and agrees that the cash payments under
Sections 5 and 6 of this Agreement extinguish any and all
obligations for monies, or other compensation or benefits that the
Executive claims or could claim to have earned or claims or could
claim is owed to her as a result of her employment by the Company
and its Related Entities through the Termination Date, under the
Offer Letter, the Severance Agreement or otherwise.
10. Tax
Consequences . The Executive acknowledges that (a) the
Company has not made any representations to her about, and that she
has not relied upon any statement in this Agreement with respect
to, any individual tax consequences that may arise by virtue of any
payment provided under this Agreement and/or her exercise of any
stock options, including, but not limited to, the applicability of
Section 409A of the Internal Revenue Code, and (b) she
has or will consult with her own tax advisors as to any such tax
consequences.
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11.
Status of Related Agreements and Future Employment
.
(a)
Agreements Between the Executive and the Company . The
Executive and the Company agree that, in addition to this
Agreement, the Offer Letter and the Severance Agreement are the
only other executed agreement between the Company and the Executive
relating to the Executive’s employment.
(b)
Offer Letter and Severance Agreement . The parties agree
that the Offer Letter and the Severance Agreement shall be
terminated as of the Termination Date.
12.
Release by the Executive . Except as otherwise expressly
provided in this Agreement, the Executive, for herself and her
heirs, executors, administrators, assigns, affiliates, successors
and agents (collectively, the “Executive’s
Affiliates”) hereby fully and without limitation releases and
forever discharges the Company and its Related Entities, and each
of their respective agents, representatives, shareholders, owners,
officers, directors, employees, consultants, attorneys, auditors,
accountants, investigators, affiliates, successors and assigns
(collectively, the “Company Releasees”), both
individually and collectively, from any and all rights, claims,
demands, liabilities, actions, causes of action, damages, losses,
costs, expenses and compensation, of whatever nature whatsoever,
known or unknown, fixed or contingent, which the Executive or any
of the Executive’s Affiliates has or may have or may claim to
have against the Company Releasees by reason of any matter, cause,
or thing whatsoever, from the beginning of time to the Effective
Date (“Claims”), including, without limiting the
generality of the foregoing, any Claims arising out of, based upon,
or relating to the recruitment, hiring, employment, relocation,
remuneration, investigation, or termination of the Executive by any
of the Company Releasees, the Executive’s tenure as an
employee and/or an officer of any of the Company Releasees, any
agreement or compensation arrangement between the Executive and any
of the Company Releasees (including, without limitation, the Offer
Letter and the Severance Agreement), or any act or occurrence in
connection with any actual, existing, proposed, prospective or
claimed ownership interest of any nature of the Executive or the
Executive’s Affiliates in equity capital or rights in equity
capital or other securities of any of the Company Releasees, to the
maximum extent permitted by law. The Executive specifically and
expressly releases any Claims arising out of or based on: the
California Fair Employment and Housing Act, as amended; Title VII
of the Civil Rights Act of 1964, as amended; the Americans With
Disabilities Act; the National Labor Relations Act, as amended; the
Equal Pay Act; ERISA; any provision of the California Labor Code;
the California common law on fraud, misrepresentation, negligence,
defamation, infliction of emotional distress or other tort, breach
of contract or covenant, violation of public policy or wrongful
termination; state or federal wage and hour laws; or any other
state or federal law, rule, or regulation dealing with the
employment relationship or operating a publicly held business.
Nothing contained in this Section 12 or any other provision of
this Agreement shall release or waive any right that Executive has
to indemnification and/or reimbursement of expenses by the Company
with respect to which Executive may be eligible as provided in the
Company’s Certificate of Incorporation, Bylaws and any
applicable directors and officers liability insurance.
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13.
Waiver of Civil Code Section 1542 .
(a) The
Executive understands and agrees that the release provided herein
extends to all Claims released above whether known or unknown,
suspected or unsuspected. The Executive expressly waives and
relinquishes any and all rights she may have under California Civil
Code Section 1542, which provides as follows:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.”
(b) The
Executive expressly waives and releases any rights and benefits
which she has or may have under any similar law or rule of any
other jurisdiction. It is the intention of each party through this
Agreement to fully, finally and forever settle and release the
Claims as set forth above. In furtherance of such intention, the
release herein given shall be and remain in effect as a full and
complete release of such matters notwithstanding the discovery of
any additional Claims or facts relating thereto.
14.
Release of Federal Age Discrimination Claims by the
Executive . The Executive hereby knowingly and voluntarily
waives and releases all rights and claims, known or unknown,
arising under the Age Discrimination In Employment Act of 1967, as
amended, which she might otherwise have had against the Company or
any of the Company Releasees regarding any actions which occurred
prior to the Effective Date.
15.
Rights Under the Older Workers Benefit Protection Act . In
accordance with the Older Workers Benefit Protection Act of 1990,
the Executive hereby is advised of the following:
(a) The
Executive has the right to consult with an attorney before signing
this Agreement and is encouraged by the Company to do
so;
(b) The
Executive has twenty-one (21) days from her receipt of this
Agreement to consider it; and
(c) The
Executive has seven (7) days after signing this Agreement to
revoke Sections 9, 12 and 14 of this Agreement (which must be
revoked in their entirety and as a group), and such Sections of
this Agreement (as a group) will not be effective until that
revocation period has expired without exercise. The Executive
agrees that in order to exercise her right to revoke this Agreement
within such seven (7) day period, she must do so in a signed
writing delivered to
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