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:
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July 6,
2006
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75,000 options
with an exercise price of $30.01
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November 1, 2006
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25,000 options
with an exercise price of $31.09
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March 3,
2008
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60,000 options
with an exercise price of $18.40.
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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