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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;
(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 voluntary. Employee agrees that this waiver and release does
not apply to any rights or claims that may arise under the ADEA
after the Effective Date of this Agreement. Employee acknowledges
that the consideration given for this waiver and release is in
addition to anything of value to which Employee was already
entitled. Employee further acknowledges that he has been advised by
this writing that: (a) he should consult with an attorney
pri
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