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Exhibit
10.1
TRANSITION AGREEMENT
AND RELEASE
This Transition Agreement and
Release (“ Agreement ”) is made, as of
March 29, 2007, by and between Christopher Larsen (“
Employee ”) and TIBCO Software Inc. (the “
Company ”) (Employee and Company are jointly referred
to as the “ Parties ”).
WHEREAS, Employee signed an
offer letter dated September 5, 2003 with attached exhibits,
including an Employment Agreement dated September 8, 2003 (the
“ Employment Agreement ”) and a
Non-Disclosure/Assignment Agreement dated September 8, 2003
(the “ NDA Agreement ”) (collectively, the
“ Offer Letter ”);
WHEREAS, Employee is employed
by the Company “at-will” as Executive Vice President,
World-wide Field Operations;
WHEREAS, the Company and
Employee have entered into certain stock option agreements granting
Employee the option to purchase shares of the Company’s
common stock subject to the terms and conditions of the applicable
Company Stock Plan and the Company’s form of written stock
option agreement(s) (collectively, the “ Stock Option
Agreements ”)
WHEREAS, the Parties are
modifying and preparing to terminate their employment
relationship;
WHEREAS, Employee shall no
longer serve in the position of Executive Vice President,
World-wide Field Operations as of the Effective Date;
WHEREAS, Employee’s
employment with the Company will cease on or before April 30
2007 (the “ Termination Date ”);
WHEREAS, the Company wishes
to retain Employee until the Termination Date and Employee wishes
to remain employed by the Company until the Termination Date, but
Employee’s employment shall remain at-will and either party
may terminate the employment relationship on an earlier date with
or without cause and with or without notice, subject to the terms
contained herein;
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, including, but not limited to, any and all
claims arising or in any way related to Employee’s current
employment with or future separation from the Company;
THUS, in consideration of the
promises made herein, the Parties agree as follows:
1.
Consideration.
(a) Up-Front Cash
Payment. In consideration for executing this Agreement, the
Company shall pay Employee the total amount of One Thousand Dollars
($1,000) (the “ Initial Payment ”), less
applicable withholding, in accordance with the Company’s
regular payroll practices. This payment shall be made to Employee
within five (5) business days after the Effective Date (as
defined below).
(b) Continued Employment;
Severance.
(i) The
Employee’s employment with the Company shall continue at-will
until the Termination Date, unless continued employment is earlier
terminated by either the Employee or by the Company for
“cause,” as defined below (the “ Employment
Period ”). The Company and Employee acknowledge and agree
that as of the Effective Date, Employee’s official title
shall be Executive Vice President, and he may refer to himself as
an Executive Vice President. Employee shall report to the Office of
the CEO. Notwithstanding his title, the Company and Employee
acknowledge and agree that the Parties do not intend Employee to be
a Section 16 officer for securities law purposes. The Company
and Employee further acknowledge and agree that, from and after
April 1, 2007, as Executive Vice President, Employee shall
(i) earn a salary of Twenty-Nine Thousand One Hundred
Sixty-Six and 67/100 Dollars ($29,166.67) per month, less
applicable withholdings (Three Hundred Fifty Thousand Dollars
($350,000) annualized, less applicable withholding) paid in
accordance with the Company’s regular payroll practices (the
“ Monthly Payments ”), (ii) be available to
work 30 hours per week (although the employee shall not be required
to work in the Company office unless requested by the
Company’s CEO, Vivek Ranadive), and (iii) perform such
services as are directed by the CEO Vivek Ranadive. If Employee
accepts another position during the Employment Period or otherwise
resigns prior to the Termination Date then Employee shall notify
the Company immediately.
(ii) Unless the
Employee’s employment is terminated by the Company for cause
as otherwise described in this Agreement, and provided that the
Employee is otherwise in compliance with all of the terms of this
Agreement, if the Employee (a) remains an Employee of the
Company through the Termination Date, or (b) resigns prior to
April 30, 2007, thereby accelerating the Termination Date, the
Company agrees that it shall pay to Employee an amount which (the
“ Termination Payment ”), when combined with the
Initial Payment and the Monthly Payments made after the execution
of this agreement and prior to the actual Termination Date, will
equal Three Hundred Fifty Thousand Dollars (US$350,000). The
Termination Payment shall be paid fifteen days following the
Termination Date.
(iii) If Employee
fails to inform the Company of any new employment (a “
Specified Breach ”), and the Company continues to pay
Employee under this section, the Company reserves the right to seek
reimbursement of payments from Employee above minimum wage for the
period following his Specified Breach. Employee shall no longer be
entitled to continued payments under this section if Employee
accepts and commences work for another employer or if the Company
terminates Employee’s employment with the Company for
“cause.” “Cause” shall mean:
(a) Employee engages in any act of dishonesty, fraud or
misrepresentation, or violation of the Company’s
anti-harassment and discrimination policies;
(b) Employee’s violation of any federal, state or other
law or regulation applicable to the Company’s business or
violation of Company policies, as set forth in the Company’s
Employee Handbook, designed to ensure compliance with a federal,
state or other law or regulation applicable to the Company’s
business; (c) Employee’s material breach of any
confidentiality agreement or invention assignment agreement between
Employee and the Company; (d) Employee acknowledging the
commission of, being convicted of, or entering a plea of guilty or
nolo contendere to, any felony or misdemeanor involving moral
turpitude; or (e) the Employee failing to notify the Company
that he has accepted a position during the Employment Period with
another company and/or the
Employee accepting a position
during the Employment Period, directly or indirectly, of providing
services for a competitor of the Company while continuing to
receive salary and other payments from the Company. In the event
that the Company believes that Employee has committed an act or
acts constituting “cause” under subsections 1(b)(i)
(a) through (e) above, the Company shall provide specific
written notice thereof to Employee, if such “cause” is
reasonably susceptible of being cured, and the termination of
Employee’s employment therefore shall become effective
fourteen (14) days after that notice, provided that it has not
been cured by that date. For purposes of this Agreement, a
“competitor of the Company” shall be any one of the
following companies, together with their successors and/or assigns:
WebMethods Inc., BEA Systems, the netweaver or infrastructure
division of SAP, the division(s) of Sun Microsystems into which
SeeBeyond has been integrated, Sonic Software, Progress Software
Corporation, the messaging software or infrastructure software
departments of IBM Corporation or Microsoft Corporation; or the
infrastructure division of Oracle Corporation.
(c) Supplemental
Severance. In the event that Employee elects to continue
employment through the Termination Date and Employee’s
employment has not been terminated for “cause,” upon
the termination of Employee’s employment, the Company agrees
that, in addition to paying the Termination Payment, the Company
will pay Employee:
(i) an additional lump
sum payment of One Hundred Thirty-Two Thousand Six Hundred
Ninety-Two Dollars ($132,692) (the “ Final Lump Sum
”), less applicable withholdings, and
(ii) reimbursement of
payments Employee makes for premiums paid for continued health
benefits for Employee (and any eligible dependents) under the
Company’s group health plans until the earlier of
(a) twelve (12) months (provided Employee validly elects
to continue coverage under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”), or (b) the date upon
which Employee and Employee’s eligible dependents become
covered under similar plans of another employer, in consideration
for, and conditioned upon, the execution by Employee of a
Supplemental Severance Agreement and Release, the form of which is
attached hereto as Exhibit A (the “ Supplemental
Agreement ”). The Final Lump Sum shall be paid within
sixteen (16) days of the Effective Date of the Supplemental
Agreement. In the event that Employee’s employment is
terminated earlier than the Termination Date for
“cause,” the Company reserves the right to elect at its
sole discretion whether or not to offer Employee any payment in
exchange for a supplemental severance agreement and release,
whether in the form of the Supplemental Agreement or some other
form satisfactory to the Company.
(d) Aggregate
Consideration. For the sake of clarity, the Company will not
pay more than Four Hundred Eighty-Two Thousand Six Hundred
Ninety-Two Dollars ($482,692) under the terms of this Agreement or
the Supplemental Agreement for the Initial Payment, the Monthly
Payments, the Termination Payment and the Final Lump Sum, inclusive
of any applicable withholding or other taxes and payment
reimbursements. To the extent the Company exceeds any specified
payment in a given month, the Company will offset that amount
against subsequent payments to achieve a total payment of Four
Hundred Eighty-Two Thousand Six Hundred Ninety-Two Dollars
($482,692) inclusive of any applicable withholding or other taxes
and payment reimbursements.
2. Benefits.
Employee’s health insurance benefits shall cease on the
earlier of the Termination Date, or the date Employee or the
Company actually terminates Employee’s employment, subject to
Employee’s right to continue his health insurance under
COBRA. Employee’s participation in all other benefits and
incidents of employment shall also cease on the earlier of the
Termination Date or the date Employee or the Company actually
terminates Employee’s employment, except that Employee shall
cease accruing vacation time and paid time off as of the Effective
Date. Employee will be paid all of his unused vacation days and the
Company agrees to provide assistance in resolving all outstanding
benefit problems/incorrect claims/filing mistakes that have been
brought to Company’s and the current health care benefit
provider, Great West’s, attention.
3. Stock. The vesting
of any stock options shall continue through the remainder of
Employee’s employment, and both vesting and exercise shall be
subject to the terms and conditions of the Stock Option
Agreements.
4. Confidential
Information. 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 Employment Agreement and NDA Agreement between
Employee and the Company, specifically including the provisions
therein regarding nondisclosure of the Company’s trade
secrets and confidential and proprietary information, and
non-solicitation of Company employees. Employee shall return to the
Company, by the Termination Date, all of the Company’s
property and confidential and proprietary information in his
possession. Notwithstanding the foregoing, Employee may retain the
laptop computer in his possession provided that, by the Termination
Date, he has made such device available to the Company for the
purpose of removing any and all Information that the Company, in
its sole discretion, deems appropriate.
5. Payment of Salary.
Employee acknowledges and represents that, as of the Effective Date
of this Agreement, the Company has paid all salary, wages, bonuses,
commissions, distributions, interest, equity, severance, fees,
penalties and any and all other benefits and compensation due to
Employee as of that date, with the exception of back-pay on the new
Three Hundred Fifty Thousand Dollar ($350,000) annual salary,
effective December 1, 2006, which back-pay is included within
the Final Lump Sum.
6. 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 past and present administrators, managers,
officers, directors, employees, investors, stockholders, agents,
attorneys, predecessors, successors in interest, and assigns,
employee benefit plans and their fiduciaries, subsidiaries,
predecessors and successors in interest, agents, representatives
and assigns. 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 past and
present administrators, managers, officers, directors, employees,
investors, stockholders, agents, predecessors, successors in
interest, and assigns, affiliates, divisions, subsidiaries,
employee benefit plans and their fiduciaries, subsidiaries,
predecessors and successors in interest (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 or facts that have occurred up
until and including the Effective Date 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 (whether on or before the Termination
Date);
(b) any and all claims
relating to, or arising from, Employee’s right to purchase or
actual purchase (if any) 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; harassment; retaliation; breach of contract, both
express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; fraud in the inducement;
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; conversion; workers’
compensation; and disability benefits;
(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 Fair Credit Reporting Act; the Worker
Adjustment and Retraining Notification Act; the Older Workers
Benefit Protection Act; the Family and Medical Leave Act; the
California Family Rights Act; the California Fair Employment and
Housing Act; the California Workers’ Compensation Act; and
the California Labor Code, including, but not limited to, Labor
Code Sections 1400-1408;
(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.
The Company and Employee
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 nor to any rights to
defense and indemnity the Employee may have available to him from
the Company pursuant to the terms of the Company’s insurance
policies, the Company’s By-Laws the
Indemnification
Agreement dated as of September 15,
2003, between the Company and Employee or pursuant to statute or
common law; further the parties agree the Employee does not waive
any rights or claims that, statutorily, cannot be waived
7. Acknowledgement 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 and the Company agree that this waiver and release does
not apply to any rights or claims that may arise under ADEA after
the Effective Date. Employee acknowledges that the consideration
given for this waiver and release Agreement 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 prior to executing this Agreement;
(b) he has twenty-one
(21) days within which to consider this Agreement;
(c) he has seven
(7) days following his execution of this Agreement to revoke
the Agreement;
(d) this Agreement
shall not be effective until the revocation period has expired;
and
(e) nothing in this
Agreement prevents or precludes Employee from challenging or
seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it impose any condition precedent,
penalties or costs from doing so, unless specifically authorized by
federal law.
8. Civil Code
Section 1542. Employee represents that he is not aware of
any claim by him against any of the Releasees other than the claims
that are released by this Agreement. Employee acknowledges that he
has had the opportunity to be advised by legal counsel and is
familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
Employee, being aware of said
code section, agrees to expressly waive any rights he may have
thereunder, as well as under any other statute or common law
principles of similar effect.
9. No Pending or Future
Lawsuits. Employee represents that he has no lawsuits, claims,
or actions pending in his name, or on behalf of any other person or
entity, against the Company or any of the Releasees. Employee also
represents that he is not presently aware of any claims on his own
behalf, not otherwise released herein, against the Company or any
of the Releasees, and that consequently, he has no present
intention to bring any claims on his own behalf or on behalf of any
other person or entity against the Company or any of the
Releasees.
10. Application for
Employment. Employee understands and agrees that, as a
condition of this Agreement, he shall not be entitled to any
employment with the Company following the Termination Date or the
earlier termination of his employment with the Company, and he
hereby waives any right, or alleged right, of employment or
re-employment with the Company. Employee further agrees that he
will not apply for employment with the Company once his employment
has been terminated.
11. Confidentiality.
The Parties acknowledge that their agreement to keep the contents
of, terms and conditions of, and the consideration for this
Agreement confidential was a material factor on which all parties
relied in entering into this Agreement. Except as permitted herein,
the Parties hereto agree to maintain in confidence the existence of
this Agreement, the contents, terms and conditions of this
Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as “ Severance Information
”). The Parties may also disclose, on a reasonable
“need to know” basis the contents of, terms and
conditions of, and the consideration for this Agreement to
(i) immediate family, (ii) legal and/or other
professional advisors, or Company personnel necessary to implement
the Agreement (as determined by the Company in its sole
discretion), (iii) to enforce (or defend against asserted
claims of) breaches of this Agreement, or (iv) as required by
law (e.g. by subpoena or for tax disclosures) or pursuant to Court
order. Except as to (iii) and (iv), such recipients of
Severance Information will also be informed of the confidentiality
requirements contained herein. Each Party hereto otherwise agrees
to take every reasonable precaution to prevent disclosure of any
Severance Information to other third parties, and agrees that there
will be no other publicity, directly or indirectly, concerning any
Severance Information. Furthermore, the Parties shall agree upon a
statement that will be used to communicate the reasons for the
Employee leaving the Company, a portion of which shall also be used
in any press release publicly announcing Employee’s
departure.
12. Non-Disparagement;
Non-Solicitation. (a) Employee agrees to refrain from any
defamation, libel or slander of the Releasees, and any tortious
interference with the contracts, relationships and prospective
economic advantage of the Releasees. Additionally, Employee may
request that a senior staff member of a potential employer or the
recruiter for that employer contact Vivek Ranadive for a verbal
reference if that potential employer has made, or is about to make,
an employment offer to the Employee. The Company’s current
officers and directors agree to refrain from any defamation, libel
or slander of the Employee, and any tortious interference with the
contracts, relationships and prospective economic advantage of the
Employee, for so long as they remain employed with the Company. In
addition, during and after the period of his employment, Employee
agrees to make himself available to the Company and/or its counsel
to assist or consult in any litigation, proceeding, investigation,
or inquiry involving the Company, (b) Employee agrees that for
a period of twelve (12) months immediately following the
Termination Date, Employee will not directly or indirectly solicit,
induce, or recruit any of the Company’s employees to leave
their employment at the Company.
13. No Cooperation.
Employee agrees that following the termination of his employment,
he will not knowingly counsel or assist any attorneys or their
clients in the presentation or prosecution of any disputes,
differences, grievances, claims, charges, or complaints by any
third party against any of the Releasees, unless under a subpoena
or court order to do so. Employee agrees both to notify the Company
upon receipt of any such subpoena or court order, and to furnish,
within three (3) business days of its receipt, a copy of
such
subpoena or court order to the Company.
After the termination of his employment, if approached by anyone
for counsel or assistance in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints
against any of the Releasees, Employee shall state no more than
that he cannot provide counsel or assistance.
14. Breach. Employee
acknowledges and agrees that any breach of Paragraphs 6, 8, 9, 11,
12, or 13 hereof or any material breach of any material provision
of the NDA Agreement shall constitute a material breach of this
Agreement, shall entitle the Company to recover the consideration
provided to Employee under t
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