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EXHIBIT 10.15
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Separation Agreement") is made
as of July 16, 2001, by and between Calico Commerce, Inc. (together with its
subsidiaries, collectively referred to as the "Company"), having a principal
place of business at 000 Xxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
and Xxxx X. Xxxxxxx ("Executive"), an individual, having a principal place of
business at 00000 Xxxxx Xxxxxxxx Xxxx, Xxx Xxxxx Xxxxx, XX 00000.
WHEREAS, Executive was employed by the Company as its President and
Chief Executive Officer and was a member of the Company's Board of Directors;
WHEREAS, Executive and the Company previously contemplated a certain
Confidential Employment Agreement (the "Employment Agreement"), and now desire
that this Separation Agreement supercede and terminate the Employment Agreement
in its entirety;
WHEREAS, Executive has previously entered into the Company's standard
confidentiality and proprietary rights agreements and confidential information
and invention assignment agreement (collectively the "Confidentiality
Agreement"), an Indemnity Agreement in the form executed between the Company and
each of its officers and directors (the "Indemnity Agreement"), and signed Stock
Option Agreements with the Company with regard to the options he was granted to
purchase the Company's common stock (the "Stock Option Agreements");
WHEREAS, the Company has loaned Executive the principal sum of
$520,000, which indebtedness is evidenced by two promissory notes each dated as
of June 30, 1998 (collectively the "Loans"). The remaining principal balance on
the Loans is $520,000, along with unpaid interest of $86,853;
WHEREAS, Executive resigned from his employment with the Company
effective July 16, 2001;and has agreed to resign from the Company's Board of
Directors effective the same date; and
WHEREAS, Executive has agreed to release the Company from any claims
arising from or related to Executive's employment relationship with the Company.
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (jointly referred to as "the Parties") hereby agree as
follows:
1. Consideration.
1.1 COBRA Expenses. Company agrees to pay the premiums (in the
amount of $801.23 per month) required to continue Executive's group health care
coverage (Blue Shield coverage for Executive, Executive's spouse and minor
children, PPO, dental and vision coverage according to the terms of Company's
health plans) for the 18-month period, under the applicable provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), provided that
Executive elects to continue and remains eligible for these benefits under
COBRA, and does not obtain health coverage through another employer during this
period.
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1.2 Loan Forgiveness. The Company will forgive the remaining
principal balance and all unpaid interest due on the Loans in two installments,
after offsetting and reducing the amount of the Loans by the purchase price
otherwise payable by the Company to repurchase any unvested stock options held
by Executive, as set forth in Section 2 below. The first installment shall be of
the entire outstanding principal balance of the loan after offsetting the
purchase price of the repurchased shares pursuant to the terms of Section 2
below, in the amount of $406,670.69, which shall be forgiven as of April 1,
2001, with the balance of any unpaid principal or interest forgiven on January
1, 2002.
1.3 Computer and Pager Equipment; Voicemail and Email. The
Company agrees to allow Executive to keep the LAPTOP computer and accessories,
including the pager, provided to him by the Company for his use while he was an
employee, for a period of up to four months after the Effective Date. Employee
agrees, however, to allow an information technologist designated by the Company
to examine the computer's hard drive and to permanently remove all data that
belongs or relates to the Company, and the Company agrees to have an information
technologist perform such task within five days after the Effective Date. The
Company also agrees to maintain voicemail and email access to Executive for up
to four months after the Effective Date.
2. Stock. Executive will not be entitled to continue vesting in any
stock options after July 16, 2001. The exercise of Executive's vested options
will continue to be governed by the terms and conditions of the Calico Commerce,
Inc. 1995 Stock Option Plan and the Calico Commerce, Inc. 1997 Stock Option
Plan, as applicable (collectively the "Stock Plans"), and the Stock Option
Agreements. All unvested options, representing 87,498 shares of common stock,
shall be repurchased by the Company at the original purchase price and pursuant
to the terms of the Stock Plans and Stock Option Agreements, to the extent that
the Company is able to repurchase such stock under the terms of all applicable
laws, including the Delaware General Corporation Law. Payment of the repurchase
price shall be made not by cash or check from Company to Executive, but by
offsetting the repurchase price against and reducing the amount owed by
Executive to Company under the Loans. Executive claims and has no other stock,
options or other interest in the Company other than those set forth on Exhibit A
attached hereto and incorporated herein. Company shall cause its transfer agent
to deliver to Executive stock certificate(s) representing 587,500 remaining
vested shares the options for which have been fully exercised and the exercise
price paid by Executive (either in cash or pursuant to the forgiveness of the
notes referenced above), but for which stock certificates have not yet been
delivered to Executive. EXECUTIVE MUST NOTIFY COMPANY WITHIN 90 DAYS AFTER JULY
16, 2001 OF ANY INTENT TO EXERCISE ANY FULLY VESTED OPTIONS NOT SUBJECT TO THE
COMPANY'S RIGHT OF REPURCHASE.
3. Benefits. Executive's health insurance benefits will cease on July
16, 2001, subject to Executive's right to continue his health insurance under
COBRA. Executive's participation in the Company's 401(k) Plan and in all other
benefits and incidents of employment shall cease on July 16, 2001. Executive
will not be entitled to accrual of any employee benefits, including, but not
limited to, personal time off, sick leave or vacation benefits, after July 16,
2001. Provided, however, that nothing in this Separation Agreement shall affect
or diminish Executive's rights to receive his vested benefits under the
Company's 401(k) plan.
4. Payment of Salary. Except as set forth herein, Executive
acknowledges and represents that the Company has paid all salary, wages,
bonuses, stock and stock options, accrued vacation, moving expenses, telephone
expenses, relocation expenses, travel expenses,
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business expenses, commissions and any and all other benefits, reimbursements
and compensation due to Executive, other than any outstanding amounts owed to
Executive under the Company's standard policy for reimbursement of travel and
entertainment expenses in an amount not to exceed $1,000. Executive has
submitted all outstanding claims for reimbursement of travel and entertainment
expenses, with all supporting documentation, and Company agrees to reimburse
such expenses within five days of the Effective Date.
5. Release of Claims. Executive agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Executive
by the Company and its officers, managers, supervisors, agents and employees.
Executive hereby and forever releases the Company and its officers, directors,
employees, managers, supervisors, agents, investors, stockholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns (the "Releasees") from, and the Company hereby and
forever releases Executive from, and each agrees not to xxx the other
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
Executive may possess against any of the Releasees, or that the Company may
possess against Executive, arising from any omissions, acts or facts that have
occurred up until and including the Effective Date of this Separation Agreement
including, without limitation,
(a) any and all claims relating to or arising out of
Executive's employment relationship with the Company and its subsidiaries and
the termination of that relationship;
(b) any and all claims relating to, or arising from,
Executive'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 for wrongful discharge of 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; 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 Americans with Disabilities Act
of 1990; the Fair Labor Standards Act; the Age Discrimination in Employment Act
of 1967; the Executive Retirement Income Security Act of 1974; the Worker
Adjustment and Restraining Notification 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;
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(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
Executive acknowledges and agrees that any breach by Executive of: (i)
this Section relating to Release of Claims; (ii) Executive's obligations under
the Confidentiality Agreement relating to the Company's confidential information
and trade secrets and non-solicitation; or (iii) Executive's obligations under
Sections 9 or 12 below relating to hiring and non-disparagement, respectively,
shall constitute a material breach of the Separation Agreement, and shall
entitle the Company to all available remedies at law or in equity. The
prevailing party in any dispute hereunder, including any action taken to enforce
the other party's obligations hereunder and in defending against a claim brought
or pursued by the other party in violation of this Section regarding Release of
Claims shall be responsible to the other party for all costs, attorneys' fees
and any and all damages incurred.
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 Separation Agreement or the Consulting Agreement, nor does this release of
claims affect Executive's right to be indemnified to the fullest extent required
by law in his capacity as an officer, director or employee of the Company or by
the Indemnity Agreement between the Company and Executive.
6. Acknowledgment of Waiver of Claims under ADEA. Executive
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. Executive 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 Separation Agreement. Executive acknowledges that the
consideration given for this waiver and release is in addition to anything of
value to which Executive was already entitled. Executive further acknowledges
that he has been advised by this writing that: (i) he should consult with an
attorney prior to executing this Separation Agreement; (ii) he has twenty-one
(21) days within which to consider this Separation Agreement; (iii) he has seven
(7) days following the execution of this Separation Agreement by the parties to
revoke the Separation Agreement; and (iv) this Separation Agreement shall not be
effective until the revocation period has expired. Should Executive decide to
revoke this Separation Agreement, notice of revocation must be delivered in
writing to the Chief Executive Officer or Chairman of the Board of Directors of
the Company.
7. California Civil Code Section 1542. Executive represents that he is
not aware of any claims against the Releases. Executive acknowledges that he has
been advised to consult with legal counsel and Executive and the Company
acknowledge that they are 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 FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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Executive and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
8. No Future Lawsuits. Executive represents that he does not intend to
bring any claims on behalf of Executive or on behalf of any other person or
entity against the Company or any other person or entity referred to herein.
Executive agrees that he will not 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 the
Company, its subsidiaries and/or any officer, director, employee, agent,
representative, stockholder or attorney of the Company or its subsidiaries,
unless under a subpoena or other court order to do so.
9. Confidentiality Agreement, Return of Company Property and Agreement
Not To Hire. Executive reaffirms and agrees to observe and abide by the terms of
the Confidentiality Agreement, specifically including the provisions therein
regarding nondisclosure of the Company's trade secrets and confidential and
proprietary information, non-solicitation of employees, and return of Company
property. Executive has returned his security access badge and corporate
American Express credit card, and agrees to return all Company equipment and
other property provided to him by the Company for his use during his employment,
other than the laptop and other equipment referenced in Section 1.4 above, in
full working order and in the same condition in which the equipment and other
property was provided to Executive for his use, subject to normal wear and tear.
For a period of one (1) year following the Effective Date, Executive agrees not
to, directly or indirectly, separately or in association with others, interfere
with, impair, disrupt or damage Company's business by soliciting, encouraging or
causing others to solicit or encourage any of Company's employees to discontinue
their employment with Company. The foregoing shall not preclude Executive from
providing a personal employment reference for departing employees.
10. Application for Employment. Executive understands and agrees that,
as a condition of this Separation Agreement, he shall not be entitled to any
employment with the Company, its subsidiaries or any successor, and he hereby
waives any right, or alleged right, of employment or re-employment with the
Company, its subsidiaries and any successor.
11. Confidentiality. Executive agrees that he shall not directly or
indirectly disclose any of the terms of this Separation Agreement, as well as
the discussions that led to the terms and conditions of this Separation
Agreement, to anyone other than his immediate family or counsel, except as such
disclosure may be required for accounting or tax reporting purposes or as
otherwise may be required by law.
12. Non-Disparagement. Executive agrees to refrain from any defamation,
libel or slander of any of the Releasees, or make any critical or disparaging
statements about the Company or any of its employees or products to any other
person or entity. Executive further agrees that he will not knowingly encourage,
advise or assist any employee or former employee of the Company or of its
subsidiaries to prosecute any claim, charge or complaint against any of the
Releasees. The Company will not, through its officers or directors, defame,
libel or slander Executive, or make any critical or disparaging statements about
Executive.
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13. No Admission of Liability. Executive understands and acknowledges
that this Separation Agreement constitutes a compromise and settlement of any
and all potential disputed claims. No action taken by the Company hereto, either
previously or in connection with this Separation Agreement, shall be deemed or
construed to be (a) an admission of the truth or falsity of any potential claims
or (b) an acknowledgment or admission by the Company of any fault or liability
whatsoever to Executive or to any third party.
14. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Separation
Agreement.
15. Tax Consequences. The Company makes no representations or
warranties with respect to the tax consequences of the payment of any sums under
the terms of this Separation Agreement or the Consulting Agreement. Executive
agrees and understands that he is responsible for payment, if any, of local,
state and/or federal taxes on the sums paid hereunder by the Company and any
penalties or assessments thereon. Executive further agrees to indemnify and hold
the Company harmless from any claims, demands, deficiencies, penalties,
assessments, executions, judgments, or recoveries by any government agency
against the Company for any amounts claimed due on account of Executive's
failure to pay federal or state taxes or damages sustained by the Company by
reason of any such claims, including attorneys' fees and costs.
16. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Separation
Agreement. Executive represents and warrants that he has the capacity to act on
his own behalf and on behalf of all who might claim through him to bind them to
the terms and conditions of this Separation Agreement. Each Party warrants and
represents that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action released
herein.
17. No Representations. Executive represents that he has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Separation Agreement. Executive
has not relied upon any representations or statements made by the Company which
are not specifically set forth in this Separation Agreement.
18. Severability. In the event that any provision or any portion of any
provision hereof becomes or is declared by a court of competent jurisdiction to
be illegal, unenforceable or void, this Separation Agreement shall continue in
full force and effect without said provision or portion of provision.
19. Entire Agreement. This Separation Agreement represents the entire
agreement and understanding between the Company and Executive concerning
Executive's employment with and separation from the Company and the events
leading thereto and associated therewith, and supersedes and replaces any and
all prior agreements and understandings concerning Executive's relationship with
the Company including, without limitation, the Employment Agreement. However,
the Confidentiality Agreement, the Indemnity Agreement, the Consulting
Agreement, the Stock Option Agreements and the Stock Plans remain in full force
and effect to the extent that they are not inconsistent with the terms of this
Separation Agreement.
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20. No Oral Modification. This Separation Agreement may only be amended
in writing signed by Executive and the Company's Chief Executive Officer or
Chairman of the Board.
21. Agreement to Arbitrate. The parties agree that any and all disputes
arising out of the terms of this Separation Agreement, their interpretation, and
any of the matters herein released, shall be subject to arbitration in Santa
Xxxxx County, before the American Arbitration Association under its California
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The arbitrator may grant injunctions and other relief in such disputes. The
decision of the arbitrator shall be final, conclusive and binding on the parties
to the arbitration. The parties agree that the prevailing party in any
arbitration shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The parties agree that the
prevailing party in any arbitration shall be awarded its reasonable attorney's
fees and costs. Employee expressly acknowledges that he is waiving any right to
a jury trial for any and all claims covered by this Separation Agreement.
22. Governing Law. This Separation Agreement shall be governed in all
respects by the laws of the United States of America and by the laws of the
State of California, as such laws are applied to agreements entered into and to
be performed entirely within California between California residents. Each of
the parties irrevocably consents to the exclusive personal jurisdiction of the
federal and state courts located in California, as applicable, except that in
actions seeking to enforce any order or any judgment of such federal or state
courts located in California, such personal jurisdiction shall be nonexclusive.
23. Successors. This Separation Agreement shall be binding upon the
Company and any of its successors or assigns and upon Executive and any of his
successors, assigns, heirs, administrators and executors.
24. Effective Date. This Separation Agreement will become effective
(the "Effective Date") on the eighth day after its execution by all of the
Parties, provided: (i) Executive does not revoke the Separation Agreement on or
before the seventh day after he signs the Separation Agreement; (ii) Executive
has returned all Company property as provided above; and (iii) Executive has
taken all necessary steps to effectuate his removal from the Company's Board of
Directors.
25. Counterparts. This Separation Agreement may be executed in
counterparts, and each counterpart shall have the same force and effect as an
original and shall constitute an effective, binding agreement on the part of
each of the undersigned.
26. Voluntary Execution of Agreement. This Separation Agreement is
executed voluntarily and without any duress or undue influence on the part or
behalf of the Parties hereto, with the full intent of releasing all claims. The
Parties acknowledge that:
(a) They have read this Separation Agreement;
(b) They have been represented in the preparation,
negotiation, and execution of this Separation Agreement by legal counsel of
their own choice or that they have voluntarily declined to seek such counsel;
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(c) They understand the terms and consequences of this
Separation Agreement and of the releases it contains;
(d) They are fully aware of the legal and binding effect
of this Separation Agreement.
IN WITNESS WHEREOF, the Parties have executed this Separation Agreement
on the respective dates set forth below.
CALICO COMMERCE, INC.
Dated: July 16, 2001 By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, for and on
behalf of the Board of Directors
XXXX X. XXXXXXX, an individual
Dated: July 16, 2001 /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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