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SEPARATION AND GENERAL RELEASE AGREEMENT

Release Agreement

SEPARATION AND GENERAL RELEASE AGREEMENT | Document Parties: SAVVIS, INC. You are currently viewing:
This Release Agreement involves

SAVVIS, INC.

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Title: SEPARATION AND GENERAL RELEASE AGREEMENT
Governing Law: Missouri     Date: 2/27/2009
Industry: Computer Services     Sector: Technology

SEPARATION AND GENERAL RELEASE AGREEMENT, Parties: savvis  inc.
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Exhibit 10.29

SEPARATION AND GENERAL RELEASE AGREEMENT

1. Parties . The parties to this Separation and General Release Agreement (“Agreement”) are:

a. Timothy E. Caulfield, a resident of Foothill Ranch, California (“Employee”); and

b. SAVVIS, Inc. (“Company”).

2. Recitals .

a. Employee and Employer have agreed that Employee’s employment with Company will end on June 30, 2009 (“Separation Date”);

b. Employee and Company desire to fully and finally resolve and settle any and all issues between them, actual or potential, whether or not relating to Employee’s employment with the Company; and

c. The parties agree that the provisions contained herein fully satisfy the Company’s obligations under all prior agreements between the parties hereto, and that this agreement supercedes any and all prior agreements.

NOW, THEREFORE, for and in consideration of the release, covenants and undertakings hereinafter set forth, and for other good and valuable consideration, which each party hereby acknowledges, and intending to be legally bound, Employee and Company agree as follows:

3. Termination of Employment . The parties agree Employee’s employment with Company will terminate effective at the close of business on the Separation Date. Up to the Separation Date, Employee shall continue to be an employee of the Company and use best efforts to perform his responsibilities, as requested by and in favor of the Company, shall fully comply with all Company policies and procedures and applicable law, shall fully cooperate with Employer, and use best efforts regarding any transition through the Separation Date performing such services and at such locations as the Employer shall request.

4. Payments, Benefits and Other Consideration . Company will provide the payments and benefits described herein in consideration and in exchange for Employee’s promises and obligations herein so long as Employee submits this Agreement properly executed to the Company and adheres to the promises and agreements set out in this Agreement.

a. Severance . Within fifteen (15) business days of the Separation Date of this Agreement (as defined in Paragraph 29 below), Company will commence payment to Employee of three hundred nine thousand Dollars ($309,000) payable in substantially equal


semi-monthly installments over 12 months less appropriate payroll deductions and taxes. For the avoidance of doubt, Employee will not receive payment of any bonus for 2008 or 2009.

b. Restricted Stock Units . Pursuant to the Stock Unit Agreement dated August 29, 2005, Employee was granted 50,000 stock units of which 16,666 have already vested and been delivered, 16,666 have vested but have future distribution dates and 16,667 have not yet vested but are scheduled to vest in March 2009. Once vested, the shares issuable pursuant to the Restricted Stock Units will be delivered in accordance with the terms of the Stock Unit Agreement.

c. Outplacement . During the period from the first business day in January 2009 until December 31, 2009, Employee will be provided, at Company expense, executive- level outplacement services as reasonably determined by the Company (near the Employee’s residence).

d. Stock Options . Employee has been granted the following stock options to acquire Company common stock:

 

July 6, 2006

  

75,000 options with an exercise price of $30.01

November 1, 2006

  

25,000 options with an exercise price of $31.09

March 3, 2008

  

60,000 options with an exercise price of $18.40.

The March 3, 2008 grant is not yet vested but a portion of the grant will vest in accordance with its terms in March 2009. Any unvested portion will terminate on the Separation Date and any vested portion will remain exerciseable for a limited period of time after the Separation Date in accordance with their terms. The July 6, 2006 and November 1, 2006 grants are fully vested and will remain exercisable for a limited period of time after the Separation Date in accordance with their terms.

e. Acknowledgment of Consideration . Employee acknowledges that the payment and benefits described in Paragraphs 4(a), (b) and (c) above are additional consideration to which Employee would not otherwise be entitled absent Employee’s execution of this Agreement and the promises set forth herein.

f. COBRA And Medical Premium Payments . Pursuant to the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) the Company will provide the required COBRA notification on the Separation Date and the COBRA benefit entitlement period of eighteen months shall commence on the Separation Date. In the event Employee elects to continue his health care coverage pursuant to the health care continuation coverage provisions of COBRA, Company shall, upon receipt of Employee’s written election, pay the entire premium for such continuation coverage for 18 month(s) for Employee

 

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and any Dependents following the month in which the Separation Date occurs. Employee, Employee’s spouse, and dependents, as applicable, may elect COBRA coverage under the provisions of COBRA on the Separation Date. If Employee chooses to continue COBRA coverage after this 18 month period, Employee will be responsible for the entire premium amounts.

5. Employee, for and on behalf of Employee and Employee’s heirs, beneficiaries, executors, administrators, successors, assigns, and anyone claiming through or under any of the foregoing, hereby agrees to, and does, remise, release and forever discharge Company, and its current and former parents, subsidiaries, divisions, and affiliates, and their respective shareholders, officers, directors, attorneys, agents, current and former employees, successors and assigns (collectively referred to as “the Company Releasees”) from any and all matters, claims, demands, damages, causes of action, debts, liabilities, controversies, judgments and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, which have arisen or could arise between Employee and the Company Releasees from matters which occurred prior to the date of execution of this Agreement, which matters include but are not limited to Employee’s employment with the Company, the terms and conditions of that employment, the termination of Employee’s employment with Company, and matters arising from the offer and acceptance of this Agreement. Employee understands that the provisions of this Paragraph mean that Employee cannot bring a lawsuit against the Company for any reason.

6. Agreement Not to File Suit . Employee, for and on behalf of Employee and Employee’s beneficiaries, executors, administrators, successors, assigns, and anyone claiming through or under any of the foregoing, agree that they will not file or otherwise submit any charge, claim, complaint, arbitration request, or action to any agency, court, organization, or judicial forum (nor will Employee permit any person, group of persons, or organization to take such action on Employee’s behalf) against the Company Releasees arising out of any actions or non-actions on the part of Company arising before execution of this Agreement. Employee further agrees that to the extent Employee has filed any claim, complaint, charge arbitration request or action against the Company, Employee will withdraw and dismiss the same with prejudice. Employee further agrees that in the event that any person or entity should bring such a charge, claim, complaint, or action on Employee’s behalf, Employee hereby waives and forfeits any right to recovery under said claim and will exercise best efforts (but will not be obliged to incur any expense) to have such claim dismissed. The provisions of this paragraph, paragraph 5 above and paragraph 7 below shall not be construed to prevent Employee from filing a charge with the Equal Employment Opportunity Commission or a comparable state or local agency, only to the extent Employee is permitted to do so by law, notwithstanding the provisions of this Agreement to the contrary. However, Employee expressly waives

 

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and disclaims any right to compensation or other benefit which may inure to Employee as a result of any such charge and hereby expressly agrees to provide any such benefit or pay any such compensation directly to the Company. Employee understands that the provisions of this Paragraph mean that Employee cannot bring a lawsuit against the Company for any reason.

7. Claims Covered . The charges, claims, complaints, matters, demands, damages, and causes of action referenced in paragraphs 5 and 6 above include, but are not limited to, (i) any claims for commission payments; (ii) any breach of an actual or implied contract of employment between Employee and Company; (iii) any claim of unjust, wrongful, or tortious discharge (including any claim of fraud, negligence, retaliation for whistleblowing, or intentional infliction of emotional distress); (iv) any claim of defamation or other common-law action; or (v) any claims of violations arising under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq ., the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq ., (including but not limited to the Older Worker’s Benefit Protection Act), the Equal Pay Act, 29 U.S.C. Section 206(d), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq ., the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq ., the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq ., the Family and Medical Leave Act, 29 U.S.C. § 2601, the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq ., Fair Employment and Housing Act, Cal. Gov’t Code section 12940 et seq., the California Family Rights Act, and the California Labor Code, or any other federal, state, or local statutes, ordinances, common laws or other laws of any kind, whether or not relating to employment, or any claims for pay, commissions, vacation pay, insurance, or welfare benefits or any other benefits of employment with Company arising from events occurring prior to the date of this Agreement other than those payments and benefits specifically provided herein. For the avoidance of doubt notwithstanding paragraphs 5-7 of this agreement, (a) the parties agree that this release is not intended to release any legal obligation of the Company to indemnify Employee arising out of the matter entitled Montana v. Savvis and Caulfield provided however, the company does not concede that such obligations exist, and (b) that with respect to the matter referenced in 7 (a), the privileged undertaking and repayment agreement dated March 12, 2008 and the privileged engagement letter dated March 13, 2008 shall continue in force subject to their terms and to the extent provided therein.

8. No Waiver of Vested Rights . Notwithstanding anything else in this Agreement, the parties agree that this Agreement shall not adversely affect, alter, or extinguish any vested right that the Employee may have with respect to any pension or other retirement benefits to which the Employee is or will be entitled by virtue of the Employee’s employment with the Company, and nothing in this Agreement shall prohibit the Employee from enforcing such rights.

 

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9. No Waiver of Future Claims . Notwithstanding anything else in this Agreement, the parties agree that this Agreement does not constitute a waiver of any rights or claims that may truly occur and arise after the date on which the Employee executes this Agreement. Employee will, at Company’s request, execute another Release in a form substantially similar to that contained herein but which will cover the period between signing this Agreement and the Separation Date.

10. Representations and Warranties Regarding the FMLA and FLSA . Employee represents and warrants that Employee is not aware of any circumstances which might entitle Employee to a leave of absence under the Family and Medical Leave Act or any fact which might justify a claim against the Company for violation of the Family Medical Leave Act. Employee further represents and warrants that Employee has received any and all wages and commissions for work performed and all overtime compensation and FMLA leave to which Employee may have been entitled, and that Employee is not currently aware of any facts or circumstances constituting a violation by the Company and/or the Company Releasees of the FMLA or FLSA.

11. Confidentiality . Employee represents that Employee has not disclosed and agrees that Employee will not disclose the terms of this Agreement, or that this Agreement exists to anyone except Employee’s attorneys, Employee’s financial advisors, Employee’s spouse, or the IRS or other taxing authorities, or as required by law, or in response to an inquiry from any judicial, governmental, regulatory, or self-regulatory agency or organization. Any disclosure contrary to the provisions of this paragraph shall be a material breach of this agreement and shall subject employee to damages including, without limitations, entitling the Company to refrain from further payments under this Agreement without being considered in breach; Employee will continue to be obligated by Employee’s promises hereunder. If Employee discloses the terms of this Agreement to Employee’s spouse, Employee’s attorneys or Employee’s financial advisors, Employee will advise them that they must not disclose the terms of this Agreement to anyone else and will be responsible for any such disclosure. If asked, but only if asked, to perform some act which would otherwise be contrary to the terms of this Agreement, Employee may state: “I am unable to further discuss that matter due to contractual agreements with my former employer.”

12. Non-Solicitation . During Employee’s employment with the Company, Employee had access to confidential information and developed certain relationships with employees and customers of the Company such that if Employee were allowed to pursue relationships with the Company’s employees or customers, Employee would have an unfair advantage based upon confidential information and/or relationships developed. Therefore, Employee agrees that from the Separation Date until the expiration of a period of one (1) year from the Separation Date (the “Covered Period”), Employee will not, directly or indirectly:

a. solicit or recruit for employment, offer employment to, hire, solicit, or recruit for placement, place and/or offer to place with another company or entity — on a temporary, permanent or contract basis, or otherwise — anyone who at any time during the Covered Period is or was employed by the Company (a “Covered Employee”); provided that, at the time of such solicitation, recruitment, offer of employment, hiring, offer to place or placement, or any time during the ninety (90) day period immediately preceding same, the Covered Employee is or was an employee of the Company;

 

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b. encourage, entice or persuade, or attempt to encourage, entice or persuade any Company employee to leave the Company;

c. solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or

d. seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity which such customer conducts with the Company or any of its Affiliates.

13. Reasonable Scope of Agreement . Employee acknowledges that the scope of this Agreement, including without limitation, paragraphs 8-9 of the Agreement, is reasonable in light of its narrow focus and the legitimate interests of the Company to be protected.

14. Confidential Information .

a. Employee acknowledges that the Company and its Affiliates continually develop Confidential Information, that Employee has developed Confidential Information for the Company or its Affiliates and that Employee had possession of and access to Confidential Information during the course of employment. Employee will continue to comply with the policies and procedures of the Company and its Affiliates in place durin


 
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