SOURCEFORGE, INC. SEPARATION AGREEMENT AND RELEASERelease Agreement |
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EXHIBIT
10.1
SOURCEFORGE,
INC.
SEPARATION
AGREEMENT AND RELEASE
This
Separation Agreement and Release ("Agreement") is made by and between
Mr.
Richard J. Marino, Jr. (“Employee”)
and SourceForge, Inc. (the “Company”), collectively referred to as the
(“Parties”):
WHEREAS,
Employee is employed by the Company;
WHEREAS,
the Company and Employee have entered into an At Will Employment, Confidential
Information, Invention, Assignment and Arbitration Agreement dated May 15,
2006
(the "Confidentiality Agreement") and an indemnification agreement executed
on
September 6, 2006 (the “Indemnification Agreement”);
WHEREAS,
the Company granted Employee an option on May 15, 2006 to purchase 500,000
shares of the Company’s common stock pursuant to the Plan, memorialized in a
Stock Option Agreement dated May 15, 2006 (the “Stock Option
Agreement”);
WHEREAS,
on June 11, 2007, Employee was granted a restricted stock award of 80,000 shares
of the Company’s stock, with time-based vesting (the “RSA”) pursuant to the
Company’s 1998 Stock Option Plan (the “Plan”), and memorialized in the
Restricted Stock Agreement dated June 11, 2007 (the “Restricted Stock
Agreement”);
WHEREAS,
Employee’s employment with the Company will terminate effective October
5, 2007
(the
“Termination Date”);
WHEREAS,
the Parties, and each of them, wish to set forth the terms of Employee’s
separation from the Company and to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions and demands that the
Employee may have against the Company as defined herein, including, but not
limited to, any and all claims arising from or in any way related to Employee’s
employment with, or separation from, the Company;
NOW
THEREFORE, in consideration of the promises made herein, the Parties hereby
agree as follows:
COVENANTS
1. Termination
Date.
Employee’s employment with the Company shall end effective as of close of
business on the Termination Date.
2. Consideration.
(a) Separation
Payment.
Within
ten (10) business days of the Termination Date (but in no event prior to the
Effective Date), the Company agrees to pay Employee a lump sum separation
payment of sixty-five thousand dollars and no cents ($65,000), equivalent to
three (3) months of Employee’s annual base salary, less applicable withholding
and other standard deductions, in accordance with the Company’s regular payroll
practices.
(b) Benefits
Continuation.
Employee’s health insurance benefits will remain in effect through October 31,
2007. To the extent permitted by law and by the Company’s current group health
insurance policies, Employee will be eligible to continue his health
insurance benefits after October 31, 2007, under the federal COBRA law at his
own expense. Employee will be provided with a separate notice of his COBRA
rights. Subject to this Agreement becoming effective on the Effective Date,
the
Company will, however, reimburse Employee for the premium payments in the amount
of One Thousand One Hundred Eighty-Five Dollars and Three Cents ($1,185.03)
per
month for three (3) months (November 2007 - January 2008) following termination
of health insurance benefits, provided that Employee submits to Company monthly
receipts, cancelled checks, or other proofs of payments.
(c) Exercise
Period.
The
exercise of Employee’s vested stock options shall continue to be governed by the
terms and conditions of the Stock Option Agreement.
(d) Forfeiture
of Unvested Restricted Stock.
Effective on the Termination Date, Employee shall cease vesting of the RSA,
and
the Company shall repurchase all of Employee’s RSA.
3. Confidential
Information; Company Property.
Employee shall continue to maintain the confidentiality of all confidential
and
proprietary information of the Company and shall continue to comply with the
terms and conditions of the Confidentiality Agreement between Employee and
the
Company.
4. Salary
and Accrued Vacation. Employee acknowledges and represents that the Company
will have paid all salary, wages, bonuses, accrued vacation, commissions and
any
and all other benefits due to Employee once the above noted payments and
benefits are received.
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 officers, managers, supervisors, agents and employees. Employee,
on his own behalf, and on behalf of his respective heirs, family members,
executors, agents, and assigns, hereby fully and forever releases the Company
and its officers, directors, employees, agents, investors, stockholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns (the “Releasees”), from, and agrees not to sue
concerning, any claim, 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 arising from any omissions, acts or
facts
that have occurred up until and including the Effective Date of this Agreement
including, without limitation:
(a) any
and
all claims relating to or arising from Employee's employment relationship with
the Company and the termination of that relationship;
(b) 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;
(c) any
and
all claims under the law of any jurisdiction including, but not limited to,
wrongful discharge of employment; constructive discharge from employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; 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;
and
conversion;
-2-
(d) 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 Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, The Worker Adjustment and Retraining
Notification Act, the Older Workers Benefit Protection Act; the California
Fair
Employment and Housing Act, and the California Labor Code;
(e) any
and
all claims for violation of the federal, or any state, constitution;
(f) any
and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination;
(g) 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
(h) any
and
all claims for attorneys' fees and costs, with the exception of such fees and
costs as may be governed by the terms of the Indemnification
Agreement.
The
Parties agree 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,
the Confidentiality Agreement, or the Indemnification Agreement.
6. Acknowledgment
of Waiver of Claims under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under
the
Age Discrimination in Employment Act of 1967 (“ADEA”), and that this waiver and
release is knowing and volu
