Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“Agreement”) is made by and between John E.
Jones (“Employee”) and St. Bernard Software, Inc.
(“Company”) (collectively referred to as the
“Parties” or individually referred to as a
“Party”).
WHEREAS, Employee is employed by the
Company;
WHEREAS, Employee signed a
confidentiality agreement with the Company (the
“Confidentiality Agreement”);
WHEREAS, Employee has the option to
purchase shares of the Company’s common stock subject to the
terms and conditions of any Stock Option Agreement(s) that Employee
signed and the Company’s Stock Option Plan (collectively the
“Stock Agreements”);
WHEREAS, Employee will submit in
writing on the date that he signs this Agreement both his
resignation from his employment with the Company and his
resignation from the Company’s Board of Directors, with both
resignations effective immediately on the date that Employee signs
this Agreement (the “Resignation Date”); and
WHEREAS, the Parties wish to resolve
any and all disputes, claims, complaints, grievances, charges,
actions, petitions, and demands that the Employee may have against
the Company and any of the Releasees as defined below, including,
but not limited to, any and all claims arising out of, or in any
way related to Employee’s employment with, or separation
from, the Company;
NOW, THEREFORE, in consideration of
the mutual promises made herein, the Company and Employee hereby
agree as follows:
1. Consideration .
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a.
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Severance . The Company agrees to pay Employee Two Hundred
Fifty Five Thousand One Hundred Nine Dollars and Sixty Cents
($255,109.60), which is the equivalent of twelve (12) months
of Employee’s base salary, automobile allowance, and COBRA
premiums, less applicable withholding. This severance compensation
will be made in monthly installments of Twenty One Thousand Two
Hundred Fifty Nine Dollars and Fourteen Cents ($21,259.14), less
applicable withholding, that commence on the last day of the month
of the Effective Date of this Agreement and end on
February 28, 2007, with the remaining balance of the severance
compensation to be paid in full, less applicable withholding, on
March 14, 2007.
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b.
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Resignation . Employee agrees to submit in writing on the
date that he signs this Agreement both his resignation from his
employment with the Company and his resignation from the
Company’s Board of Directors, with both resignations
effective immediately.
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c.
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Trip
Reimbursement . The
Company agrees to reimburse Employee for the reasonable travel
expenses incurred by Employee and his wife for two (2) trips
from Chicago, Illinois to San Diego, California. Such
reimbursements shall be made by the Company to Employee consistent
with the Company’s normal expense reimbursement policy,
provided that Employee submits documentation to the Company
substantiating the reasonable travel expenses.
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2. Stock . The Parties agree
that for purposes of determining the number of shares of the
Company’s common stock that Employee is entitled to purchase
from the Company, pursuant to the exercise of outstanding options,
Employee will be considered to have vested only up to the
Resignation Date. The exercise of Employee’s vested options
and shares shall continue to be governed by the terms and
conditions of the Company’s Stock Agreements.
3. Benefits .
Employee’s health insurance benefits shall cease on the last
day of November 2006, subject to Employee’s right to continue
his health insurance under COBRA. Employee’s participation in
all benefits and incidents of employment, including, but not
limited to, vesting in stock options, and the accrual of bonuses,
vacation, sabbatical, and paid time off, will cease as of the
Resignation Date.
4. Payment of Salary .
Employee acknowledges and represents that, other than the
consideration set forth in this Agreement and any unreimbursed
business expenses actually incurred prior to the Resignation Date,
not to exceed Five Thousand Dollars ($5,000), the Company has paid
all salary, wages, bonuses, accrued vacation/sabbatical/paid time
off, housing allowances, business expenses, relocation costs,
interest, severance, outplacement costs, fees, commissions, and any
and all other benefits and compensation due to Employee as of the
Resignation Date.
5. Release of Claims .
Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee
by the Company and its current and former officers, directors,
employees, agents, investors, attorneys, shareholders,
administrators, affiliates, divisions, and subsidiaries, and
predecessor and successor corporations and assigns (the
“Releasees”). Employee, on his own behalf, and on
behalf of his respective heirs, family members, executors, agents,
and assigns, hereby and forever releases the Releasees from, and
agrees not to sue concerning, or in any manner to institute,
prosecute or pursue, any claim, complaint, charge, duty,
obligation, or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that
Employee may possess against any of the Releasees arising from any
omissions, acts, facts, or damages that have occurred up until and
including the Effective Date of this Agreement, including, without
limitation:
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a.
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any and all
claims relating to or arising from Employee’s employment
relationship with the Company and the termination of that
relationship;
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b.
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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;
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c.
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any and all
claims for wrongful discharge of employment; termination in
violation of public policy; discrimination; harassment;
retaliation; breach of contract, both express and implied; breach
of 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; false imprisonment;
conversion; workers’ compensation and disability
benefits;
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d.
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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 Americans with
Disabilities Act of 1990; the Fair Labor Standards Act; the Fair
Credit Reporting Act; the Age Discrimination in Employment Act of
1967; the Older Workers Benefit Protection Act; the Employee
Retirement Income Security Act of 1974; the Worker Adjustment and
Retraining Notification Act; the Family and Medical Leave Act,
except as prohibited by law; the Sarbanes-Oxley Act of 2002; the
California Family Rights Act; the California Labor Code, except as
prohibited by law; the California Workers’ Compensation Act,
except as prohibited by law; and the California Fair Employment and
Housing Act;
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e.
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any and all
claims for violation of the federal or any state
constitution;
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f.
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any and all
claims arising out of any other laws and regulations relating to
employment or employment discrimination;
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g.
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any claim for
any loss, cost, damage, or expense arising out of any dispute over
the non-withholding or other tax treatment of any of the proceeds
received by Employee as a result of this Agreement; and
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h.
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any and all
claims for attorneys’ fees and costs.
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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. This release does not release claims that cannot be
released as a matter of law, including, but not limited to, claims
under Division 3, Article 2 of the California Labor Code (which
includes California Labor Code section 2802 regarding indemnity for
necessary expenditures or losses by employee) and claims prohibited
from release as set forth in California Labor Code section 206.5
(specifically “any claim or right on account of wages due, or
to become due, or made as an advance on wages to be earned,
unless
