Exhibit 99.1
SEPARATION AGREEMENT AND GENERAL
RELEASE
This Separation Agreement and
General Release (this or the “Agreement”) is hereby
entered into by and between Sally L. Edwards, an individual (the
“Executive”), and DDi Corp., a Delaware corporation, on
behalf of itself and all of its subsidiaries (collectively, the
“Company”).
Recitals
A. The Executive has been employed
by the Company pursuant to an Employment Agreement by and between
the Company and the Executive effective as of April 13, 2007
(the “Employment Agreement”), serving as Senior Vice
President & Chief Financial Officer of the Company;
and
B. The Executive has elected to
resign her 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”) on the terms and conditions set forth
in this Agreement.
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 October 16, 2009 (the “Termination
Date”). The Executive resigns as a director and/or officer of
the Company and its Related Entities effective as of 5:00 p.m.
Pacific Time, on 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 (i) pay on behalf of the Executive, to the
extent permitted by the COBRA provider; or (ii) provide
reimbursement, of insurance premiums payable by the Executive to
continue the Executive’s group health coverage for herself
and eligible dependents pursuant to COBRA (if the Executive timely
elects COBRA coverage) for the
first twelve (12) months
following the Termination Date (the “Severance
Period”), as long as the Executive has not revoked this
Agreement as provided in Section 17(c), below, and the Company
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 but unpaid through the Termination
Date, plus payment for 102.82 hours of accrued but unused vacation
time. The Company also shall reimburse any business expenses
incurred by the Executive in accordance with the Company’s
business expense policy prior to the Termination Date, provided
that the Executive has submitted all required supporting
documentation and the expense was properly incurred.
6. Severance Payment . In
return for the Executive’s promises in this Agreement, the
Company will provide Executive with a severance payment in the
gross amount of Two Hundred and Fifty Thousand Dollars $250,000,
which is equal to twelve months of base salary (“Severance
Payment”), less deductions required by law, as long as the
Executive has not revoked this Agreement as provided in
Section 17(c), below, and the Company has received a signed
original of this Agreement. The Severance Payment shall be paid as
follows: the first payment shall be in the amount of one hundred
thousand dollars ($100,000) and shall be paid within eight business
days following the Effective Date. The remaining payments shall
equal a total of one hundred and fifty thousand dollars ($150,000)
and shall be paid to the Executive in twelve (12) equal
consecutive payments commencing in November 2009 on the first
business day of the month. 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 the Executive. The
Executive understands that she will not receive any portion of the
Severance Payment if she revokes this Agreement as provided in
Section 17(c) of this Agreement or the Company has not
received a signed original of this Agreement. The Company may
delegate the payment obligation under this Section 6 to its
operating subsidiary, Dynamic Details, Inc., provided that the
Company shall remain fully responsible for performing the payment
obligations as set forth herein.
7. Stock Options and Restricted
Stock . As long as the Executive has not revoked this Agreement
as provided in
Section 17(c), below, the Company will accelerate the vesting
of 13,333 restricted share units scheduled to vest on
October 28, 2009 and 6,667 shares of unvested restricted
shares scheduled to vest on December 4, 2009, held by the
Executive, effective on the Termination Date. All outstanding
unvested stock options to purchase shares of common stock of the
Company, $0.001 par value per share, previously granted to the
Executive and all other unvested shares of restricted stock or
restricted stock units shall be cancelled as of the Termination
Date.
8. Bonus Payment. As long as
the Executive has not revoked this Agreement as provided in
Section 17(c), below, the Company will provide the Executive
with a payment in an amount equal to the pro-rata portion of any
bonus payment that would have been due to the Executive under
Section 3(b) of the Employment Agreement had the Executive
been employed by the Company as of the last day of the fiscal year
during which such termination occurred, calculated as the product
of the bonus, if any (as determined pursuant to Section 3(b)
of the Employment Agreement) multiplied by a fraction, the
numerator equal to the number of days from the start of the
applicable fiscal year through the Termination Date, and the
denominator being 365, less deductions required by law.
2
9. Legal Reimbursement
Payments. The Company and the Executive have agreed upon an
amount of the Executive’s actual legal fees and costs owed to
Mitchell Silberberg & Knupp LLP (“MSK”) that
the Company shall pay to MSK (the “MSK Payment”). The
Executive and the Company have agreed that notwithstanding anything
to the contrary herein or in any other agreement, the MSK Payment
constitutes the total obligation of the Company to the Executive
relating to her legal representation expenses owing to MSK arising
out of her employment with the Company.
10. Effect of Subsequent
Employment . If the Executive accepts any employment at any
time prior to the expiration of the Severance Period, and as a
result becomes covered under an employer’s group health plan,
the Company’s obligation to reimburse premiums for insurance
coverage under COBRA or otherwise will be extinguished as of the
date the Executive begins receiving coverage under the group health
plan of the Executive’s new employer.
11. Acknowledgement of Total
Compensation and Indebtedness . The Executive acknowledges and
agrees that the COBRA benefits, cash payments and other payments
under Sections 4 through 9 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
Employment Agreement or otherwise.
12. 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 consulted or will
consult with her own tax advisors as to any such tax
consequences.
13. 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, (i) the Employment
Agreement; (ii) the Restricted Stock Unit Award Agreement
dated October 28, 2008 (the “Restricted Stock Unit Award
Agreement”); (iii) the Restricted Stock Agreement dated
December 4, 2007 (the “Restricted Stock
Agreement”); and (iv) the Stock Option Award Agreement
dated April 4, 2006 and the Stock Option Award Agreement dated
February 26, 2007 (collectively, the “Stock Option Award
Agreements”); are the only other executed agreements between
the Company and the Executive relating to the Executive’s
employment.
b. Employment Agreement . The
parties agree that the Employment Agreement shall be terminated as
of the Termination Date. Notwithstanding the termination of the
Employment Agreement, the Executive acknowledges that the duties
and obligations set forth in Section 5 of the Employment
Agreement extend beyond the Termination Date. In the event that any
provision of this Agreement conflicts with Section 5 of the
Employment Agreement, the terms and provisions of the section(s)
providing the greatest protection to the Company and its Related
Entities shall control.
3
c. Restricted Stock Unit Award
Agreement . The parties hereto agree that as long as the
Executive has not revoked this Agreement as provided in
Section 17(c), the Restricted Stock Unit Award Agreement shall
be amended as set forth in Section 7 herein, effective upon
the Termination Date.
d. Restricted Stock Agreement
. The parties hereto agree that as long as the Executive has not
revoked this Agreement as provided in Section 17(c), the
Restricted Stock Award Agreement shall be amended as set forth in
Section 7 herein, effective upon the Termination
Date.
e. Termination of Stock Option
Award Agreements . The parties hereto agree that the Stock
Option Award Agreements shall be terminated at such time as the
vested options expire pursuant to the terms of the Stock Option
Award Agreements.
14. 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, stockholders, owners, officers, directors,
employees, consultants, attorneys (solely in their capacity as
counsel for the Company and its Related Entities) 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 cessation of employment 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 Employment 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, except that Executive does not
release any claims for vested benefits, including, but not limited
to, vested restricted stock or stock options. 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; the California common law on fraud,
misrepresentation, negligence, defamation, infliction of
4
emotional distress or other tort,
breach of contract or covenant, violation of public policy or
wrongful termination; state or federal wage and hour laws, and
other provisions of the California Labor Code; or any other state
or federal law, rule, or regulation dealing with the employment
relationship or operating a publicly held business. With the
exception of the agreement for the Voluntary Legal Fee Payments in
Section 9 herein, nothing contained in this Section 14 or
any other provision of this Agreement shall release or waive any
right that the Executive has to indemnification and/or
reimbursement of expenses by the Company with respect to which the
Executive may be eligible as provided in the Certificate of
Incorporation of the Company, the Bylaws of the Company, any
applicable directors and officers, errors and omissions, umbrella
or general liability insurance policies, any applicable
indemnification agreements and any other applicable statutory
provision relating to indemnification or reimbursement nor prevent
the Executive from cooperating in an investigation by the Equal
Employment Opportunity Commission (“EEOC”) or from
filing an EEOC charge other than for personal relief. In accordance
with California law, the Executive retains whatever rights she may
have under California Labor Code Section 2802 (“Section
2802”) and the Company retains its rights to deny any claim
under Section 2802 based on conduct by the Executive that was
outside the course and scope of her duties as an employee of the
Company.
15. 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 KN
