EXHIBIT 10.2
TRANSITION AGREEMENT
This Transition Agreement made as of this 31st day of January 2006 by and
between Unica Corporation ("Unica" or "Company") and Xxxxxxx X. Xxxxx ("Xx.
Xxxxx").
WHEREAS, Xx. Xxxxx has served as the Company's Vice President and Chief
Financial Officer since March 2002;
WHEREAS, Xx. Xxxxx has indicated to the Company his desire to explore
various professional opportunities which have been or may be presented to him;
and
WHEREAS, the Company desires to secure his continued service for a minimum
designated period of time to allow for the timely completion of his current
assignments and to allow for an appropriate transition of duties to a new Vice
President and Chief Financial Officer.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows.
1. CONTRACTUAL STATUS. The parties agree that Xx. Xxxxx will remain
employed as the Company's Vice President and Chief Financial Officer from the
date of this Transition Agreement until his resignation as Vice President and
Chief Financial Officer on February 28, 2006, thereafter will remain an employee
until his employment resignation on March 15, 2006 ("Contractual Period"). The
parties further agree that Xx. Xxxxx will continue to perform those duties and
responsibilities customary and consistent with his position as Vice President
and Chief Financial Officer until February 28, 2006. From March 1, 2006 until
March 15, 2006, Xx. Xxxxx will remain an employee of the Company, but will no
longer be Vice President and Chief Financial Officer. During this Contractual
Period, Xx. Xxxxx will continue to receive the same base salary, fringe
benefits, and stock options vesting (including the March 11,2006 vesting) to
which he was entitled immediately prior to the execution date of this Transition
Agreement. In the event that the Company chooses a successor to Xx. Xxxxx as
Vice President and Chief Financial Officer prior to February 28, 2006, Xx. Xxxxx
agrees to immediately resign his position as Vice President and Chief Financial
Officer, as well as other positions with any subsidiary or affiliate of the
Company and he will assist the new Vice President and Chief Financial Officer
for the remainder of the Contractual Period. In the event that the Company
wishes to retain Xx. Xxxxx'x services after March 15, 2006 to assist in the
transition process, Xx. Xxxxx agrees to do so under a mutually acceptable
consulting agreement, at a mutually agreed upon hourly rate of pay.
2. CONSIDERATION.
(a) RELEASE. Upon the cessation of Xx. Xxxxx'x employment pursuant to
Section 1 above, Xx. Xxxxx shall, no later than March 23, 2006, execute the
Release of Claims attached hereto as Exhibit A and, conditioned on the execution
and nonrevocation by Xx. Xxxxx of the Release of Claims, Xx. Xxxxx or, in the
event of Xx. Xxxxx'x death, his estate, shall be entitled to the compensation
and benefits set forth in subparagraphs 2(b)-(g) below.
(b) PAYMENTS. In consideration for the promises made herein, the Company
shall provide Xx. Xxxxx payments commencing on the next regularly scheduled pay
cycle following the date the Release of Claims referenced in paragraph 2 above
becomes binding upon him in the amount of $8,083.84, less applicable taxes and
withholdings for a period of nine (9) months. The total gross amount of these
payments is $145,000.
(c) BONUS PAYMENT(s). In consideration for the promises made herein, in
accordance with the terms, conditions and payment schedule of the Company's FY06
Executive Bonus Plan, Xx. Xxxxx will receive payment for the Q1 bonus, provided
the Company meets its financial targets or the Board at its discretion awards
the bonus to other participants in the Executive Bonus Plan. In addition, in
lieu of a Q2 bonus, Xx. Xxxxx will be eligible to receive a performance bonus of
$7,500 provided he competently performs his duties pursuant to this Transition
Agreement and, if applicable, successfully transfers his duties to a successor
as assessed by Xxxxx Xxxx, Vice-President, Human Resources, in her sole
discretion. If earned as determined by Xx. Xxxx, Xx. Xxxxx will receive this
bonus payment on March 16, 2006.
(d) EXECUTIVE TRANSITION SERVICES. In order to provide you with the
identification of your next professional opportunity, the Company will provide
you with up to $3,000 of executive services through Transition Solutions,
provided the services are completed and paid by December 1, 2006.
(e) EDUCATIONAL REIMBURSEMENT. The Company will reimburse Xx. Xxxxx for up
to $2,000 in tuition reimbursement for executive education coursework of his
choice, provided the coursework is completed and the expense reimbursement claim
received by the Company on or before September 30, 2006.
(f) HOME COMPUTER. The Company will allow Xx. Xxxxx to keep his current
home computer provided he allows the Company to remove all Company programs,
applications and information from the computer prior to his termination of
employment.
(g) HEALTH AND DENTAL INSURANCE. The date Xx. Xxxxx'x employment with the
Company terminates pursuant to this Transition Agreement, March 15, 2006 (the
"Termination Date") will serve as the "qualifying event" under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA"). If he timely elects to
continue medical and/or dental insurance coverage after the Termination Date in
accordance with the provisions of COBRA, the Company will pay the Company
portion of his monthly premium payments for the same period he is receiving
payments under paragraph 2 (b) above (the "Payment Period") or until he obtains
other employment and completes any applicable insurance waiver or waiting
period, whichever occurs first. Xx. Xxxxx still will be responsible for the
employee portion of the premium during the Payment Period and such amounts will
be deducted from the payments.
(h) TAXES. All amounts set forth in this Section 2 are subject to any
applicable federal, state and local deductions, withholdings, payroll and other
taxes.
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(i) TERMINATION OF BENEFITS. All other benefits, including life insurance
and long term disability, will end upon the Termination Date.
(j) SECTION 409A. The benefits received under this Transition Agreement
are not considered "nonqualified deferred compensation" within the meaning of
Internal Revenue Code Section 409A ("Section 409A"). Accordingly, no reporting
under Section 409A is required. However, if the Company determines in the future
that a Section 409A reporting is required for the consideration paid to Xx.
Xxxxx herein, it will notify Xx. Xxxxx, in writing, in advance of said
reporting.
3. NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION OBLIGATIONS. Xx.
Xxxxx acknowledges and reaffirms all of his obligations, consistent with
applicable law, to keep confidential and not to disclose any and all non-public
information concerning the Company that he acquired during the course of his
employment with the Company, including, but not limited to, any non-public
information concerning the Company's business affairs, business prospects and
financial condition, as is stated more fully in the Non-Competition,
Nondisclosure and Developments Agreement, he executed on March 11, 2002 (the
"Non-Compete Agreement"), which remains in full force and effect.
4. RETURN OF COMPANY PROPERTY. Xx. Xxxxx confirms that, as of March 15,
2006, he will return to the Company all keys, files, records (and copies
thereof), equipment (including, but not limited to, software and printers,
wireless handheld devices, cellular phones, pagers, but not his computer as set
forth in paragraph 2 (f)), Company identification, Company vehicles and any
other Company-owned property in his possession or control, and that he will
leave intact all electronic Company documents, including, but not limited to,
those which he developed or helped develop during his employment. Xx. Xxxxx
agrees that in the event that he discovers any other Company or proprietary
materials in his possession after the Termination Date, he will immediately
return such materials to Xx. Xxxx at the Company. Xx. Xxxxx further confirms
that he will have cancelled all accounts for his benefit, if any, in the
Company's name, including, but not limited to, credit cards, telephone charge
cards, cellular phone and/or pager accounts and computer accounts.
5. XX. XXXXX'X RELEASE OF CLAIMS. In consideration of the benefits
provided for in this Transition Agreement, which Xx. Xxxxx acknowledges he would
not otherwise be entitled to receive, Xx. Xxxxx hereby fully, forever,
irrevocably and unconditionally releases, remises and discharges the Company,
its officers, directors, stockholders, corporate affiliates, subsidiaries,
parent companies, agents and employees (each in their individual and corporate
capacities) (hereinafter, the "Released Parties") from any and all claims,
charges, complaints, demands, actions, causes of action, suits, rights, debts,
sums of money, costs, accounts, reckonings, covenants, contracts, agreements,
promises, doings, omissions, damages, executions, obligations, liabilities, and
expenses (including attorneys' fees and costs), of every kind and nature which
he ever had or now has against the Released Parties, including, but not limited
to, any claims arising out of his employment with and/or separation from the
Company, including, but not limited to, all employment discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et
seq., the Age Discrimination in Employment Act, 29 U.S.C. Section 621 et seq.,
the Americans With Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq.,
the Family and Medical Leave Act, 29 U.S.C. Section 2601 et seq., the
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Worker Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. Section
2101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Section 701 et seq.,
all as amended; all claims arising out of the Fair Credit Reporting Act, 15
U.S.C. Section 1681 et seq., the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. Section 1001 et seq., the Massachusetts Fair Employment
Practices Act., M.G.L. c. 151B, Section 1 et seq., the Massachusetts Civil
Rights Act, M.G.L. c. 12, Sections 11H and 11I, the Massachusetts Equal Rights
Act, M.G.L. c. 93, Section 102 and M.G.L. c. 214, Section 1C, the Massachusetts
Labor and Industries Act, M.G.L. c. 149, Section 1 et seq., the Massachusetts
Privacy Act, M.G.L. c. 214, Section 1B, and the Massachusetts Maternity Leave
Act , M.G.L. c. 149, Section 105(d), all as amended; all common law claims
including, but not limited to, actions in tort, defamation and breach of
contract; all claims to any non-vested ownership interest in the Company,
contractual or otherwise, including, but not limited to, claims to stock or
stock options; and any claim or damage arising out of his employment with or
separation from the Company (including any claim for retaliation) under any
common law theory or any federal, state or local statute or ordinance not
expressly referenced above; provided, however, that nothing in this Transition
Agreement prevents him from filing, cooperating with, or participating in any
proceeding before the EEOC or a state Fair Employment Practices Agency (except
that he acknowledges that he may not be able to recover any monetary benefits in
connection with any such claim, charge or proceeding). Notwithstanding the
foregoing, Xx. Xxxxx is not releasing claims for vested benefits, claims and/or
rights to any defense and indemnification from the Company as set forth in the
Indemnification Agreement dated November 1, 2004. Nothing herein shall waive any
rights Xx. Xxxxx might have for breach of this Transition Agreement.
6. PERFORMANCE REFERENCE, NON-DISPARAGEMENT: Xx. Xxxxxx Xxx, CEO, agrees
to provide Xx. Xxxxx with a positive oral reference regarding his employment at
the Company.
The Company will instruct Xx. Xxxxxx Xxx that he shall not make any false,
disparaging or derogatory statements to any media outlet, industry group,
financial institution or current or former employee, consultant, client or
customer of the Company regarding Xx. Xxxxx.
7. ACKNOWLEDGMENT. Xx. Xxxxx acknowledges that he has been given at least
twenty-one (21) days to consider this Transition Agreement and the Release of
Claims at Attachment A, and that the Company advises him to consult with an
attorney of his own choosing prior to signing this Transition Agreement and
Attachment A. Xx. Xxxxx is advised that he may revoke his agreement for a period
of seven (7) days after he signs it, and the release provided above shall not be
effective or enforceable until the expiration of such seven (7) day revocation
period. XX. XXXXX IS ADVISED AND HE UNDERSTANDS AND AGREES THAT BY ENTERING INTO
THIS AGREEMENT AND SIGNING IT AND THE RELEASES OF CLAIMS HE IS WAIVING ANY AND
ALL RIGHTS OR CLAIMS HE MIGHT HAVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT, AS AMENDED BY THE OLDER WORKERS BENEFIT PROTECTION ACT, AND THAT HE HAS
RECEIVED CONSIDERATION BEYOND THAT TO WHICH HE WAS PREVIOUSLY ENTITLED.
8. AMENDMENT. This Transition Agreement shall be binding upon the parties
and may not be modified in any manner, except by an instrument in writing of
concurrent or subsequent date signed by duly authorized representatives of the
parties hereto. This Transition Agreement is binding upon and shall inure to the
benefit of the parties and their respective agents, assigns, heirs, executors,
successors and administrators.
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9. NO WAIVER. No delay or omission by either party in exercising any right
under this Transition Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by a party on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver of
any right on any other occasion.
10. VALIDITY. Should any provision of this Transition Agreement be
declared or be determined by any court of competent jurisdiction to be illegal
or invalid, the validity of the remaining parts, terms or provisions shall not
be affected thereby and said illegal and/or invalid part, term or provision
shall be deemed not to be a part of this Transition Agreement.
11. VOLUNTARY ASSENT. Xx. Xxxxx affirms that no other promises or
agreements of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Transition Agreement, and that he fully
understand the meaning and intent of this agreement. Xx. Xxxxx states and
represents that he has had an opportunity to fully discuss and review the terms
of this Transition Agreement and Attachment A with an attorney. Xx. Xxxxx
further states and represents that he has carefully read this Transition
Agreement, including Attachment A hereto, understand the contents therein,
freely and voluntarily assent to all of the terms and conditions hereof, and
signs his name of his own free act.
12. APPLICABLE LAW. This Transition Agreement shall be interpreted and
construed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions. The parties hereby irrevocably submit to and
acknowledge and recognize the jurisdiction of the courts of the Commonwealth of
Massachusetts, or if appropriate, a federal court located in Massachusetts
(which courts, for purposes of this Transition Agreement, are the only courts of
competent jurisdiction), over any suit, action or other proceeding arising out
of, under or in connection with this Transition Agreement or the subject matter
hereof.
13. ENTIRE AGREEMENT. This Transition Agreement, together with Attachment
A, contains and constitutes the entire understanding and agreement between the
parties hereto and cancels all previous oral and written negotiations,
agreements, commitments and writings in connection therewith. Nothing in this
paragraph, however, shall modify, cancel or supersede Xx. Xxxxx'x obligations
set forth in paragraph 3 above.
UNICA CORPORATION Xxxxxxx X. Xxxxx
By: /s/ Xxxxxx Xxx /s/ Xxxxxxx X. Xxxxx
--------------------------------- --------------------------------
Name: Xxxxxx Xxx
Title: Chief Executive Officer
Date: January 31, 2006 Date: January 31, 2006
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ATTACHMENT A:
RELEASE OF CLAIMS
This Release of Claims forms a part of that certain Transition Agreement (the
"Transition Agreement") dated as of January 31, 2006 by and among Xxxxxxx X.
Xxxxx ("Xx. Xxxxx"), and Unica Corporation (collectively, the "Company").
1. XX. XXXXX'X RELEASE OF CLAIMS - In consideration of the payment of the
benefits set forth in paragraph 2 of the Transition Agreement, which Xx. Xxxxx
acknowledges he would not otherwise be entitled to receive, he hereby fully,
forever, irrevocably and unconditionally releases, remises and discharges the
Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents and employees (each in their individual
and corporate capacities) (hereinafter, the "Released Parties") from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every kind
and nature which he ever had or now has against the Released Parties, including,
but not limited to, any claims arising out of his employment with and/or
separation from the Company, including, but not limited to, all employment
discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C.
Section 621 et seq., the Americans With Disabilities Act of 1990, 42 U.S.C.
Section 12101 et seq., the Family and Medical Leave Act, 29 U.S.C. Section 2601
et seq., the Worker Adjustment and Retraining Notification Act ("WARN"), 29
U.S.C. Section 2101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C.
Section 701 et seq., all as amended; all claims arising out of the Fair Credit
Reporting Act, 15 U.S.C. Section 1681 et seq., the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001 et seq., the
Massachusetts Fair Employment Practices Act., M.G.L. c. 151B, Section 1 et seq.,
the Massachusetts Civil Rights Act, M.G.L. c. 12, Sections 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, Section 102 and M.G.L. c. 214,
Section 1C, the Massachusetts Labor and Industries Act, M.G.L. c. 149, Section 1
et seq., the Massachusetts Privacy Act, M.G.L. c. 214, Section 1B, and the
Massachusetts Maternity Leave Act , M.G.L. c. 149, Section 105(d), all as
amended; all common law claims including, but not limited to, actions in tort,
defamation and breach of contract; all claims to any non-vested ownership
interest in the Company, contractual or otherwise, including, but not limited
to, claims to stock or stock options; and any claim or damage arising out of his
employment with or separation from the Company (including any claim for
retaliation) under any common law theory or any federal, state or local statute
or ordinance not expressly referenced above; provided, however, that nothing in
this Release of Claims prevents him from filing, cooperating with, or
participating in any proceeding before the EEOC or a state Fair Employment
Practices Agency (except that he acknowledges that he may not be able to recover
any monetary benefits in connection with any such claim, charge or proceeding).
Notwithstanding the foregoing, Xx. Xxxxx is not releasing claims for vested
benefits, claims and or rights to any defense and indemnification from the
Company as set forth in the Indemnification Agreement dated November 1, 2004.
Nothing herein shall waive any rights Xx. Xxxxx might have for breach of this
Transition Agreement.
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2. ACKNOWLEDGEMENT - Xx. Xxxxx hereby acknowledges that he has been given
at least twenty-one (21) days to consider the Transition Agreement, as well as
this Attachment A, and that the Company advises him to consult with any attorney
of his own choosing prior to signing the Transition Agreement and this
Attachment A. Xx. Xxxxx is advised that he may revoke his acceptance of this
Attachment A during the period of seven (7) days after the execution of it, and
this Attachment A shall not become effective or enforceable, and no severance
payments will be made pursuant to Paragraph 2 of the Transition Agreement, until
this seven (7) day period has expired. XX. XXXXX IS ADVISED AND HE UNDERSTANDS
AND AGREES THAT BY ENTERING INTO THIS AGREEMENT AND SIGNING IT AND THE RELEASE
OF CLAIMS HE IS WAIVING ANY AND ALL RIGHTS OR CLAIMS HE MIGHT HAVE UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED BY THE OLDER WORKERS BENEFIT
PROTECTION ACT, AND THAT HE HAS RECEIVED CONSIDERATION BEYOND THAT TO WHICH HE
WAS PREVIOUSLY ENTITLED.
3. NON-DISPARAGEMENT - Xx. Xxxxx understands and agrees that he shall not
make any false, disparaging or derogatory statements to any media outlet,
industry group, financial institution or current or former employee, consultant,
client or customer of the Company regarding the Company or any of its directors,
officers, employees, agents or representatives or about the Company's business
affairs and financial condition.
4. APPLICABLE LAW - This Release of Claims shall be interpreted and
construed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions. Xx. Xxxxx hereby irrevocably submits to and
acknowledges and recognizes the jurisdiction of the courts of the Commonwealth
of Massachusetts, or if appropriate, a federal court located in Massachusetts
(which courts, for purposes of this Transition Agreement, are the only courts of
competent jurisdiction), over any suit, action or other proceeding arising out
of, under or in connection with this Release of Claims or the subject matter
hereof.
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
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Date: January 31, 2006
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