Exhibit 10.43
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made and
entered into this 1st day of September, 1999 by and between Object Design, Inc.,
a Delaware Corporation ("ODI"), and Xxxx Xxxxxx, an individual residing at 00
Xxx Xxxxxx Xxxx, Xxxxxx, XX 00000, ("Xxxxxx").
W I T N E S S E T H T H A T:
WHEREAS, ODI has employed Xxxxxx most recently as Senior Vice President and
General Manager, ObjectStore Division; and
WHEREAS, ODI and Xxxxxx wish to set forth the terms of the termination of
Xxxxxx'x employment with ODI;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, ODI and Xxxxxx hereby agree as follows:
1. Xxxxxx hereby agrees to resign as Senior Vice President and General
Manager, ObjectStore Division of ODI, effective as of September 30, 1999. At the
request of ODI, Xxxxxx will execute and deliver to ODI a separate instrument
embodying such resignation.
2. ODI agrees to pay Xxxxxx an amount of $29,166.66 per month, less
applicable deductions for a period of six (6) months, and ODI shall provide
Xxxxxx with medical and dental insurance coverage on the same basis as if he
were still employed by ODI, less Xxxxxx'x applicable contribution, for a period
of six (6) months following the effective date of termination; provided,
however, that if Xxxxxx becomes re-employed with another employer and is
eligible to receive such insurance coverage under another employer-provided
plan, ODI's contribution toward the insurance coverage set forth herein shall
terminate unless Xxxxxx elects to continue such Coverage, at Xxxxxx'x sole
expense. Notwithstanding and in replacement of the foregoing, in the event that
ODI reaches a definitive agreement, prior to September 30, 1999, to be acquired,
and further conditioned upon the final consummation of such acquisition, ODI
agrees to pay Xxxxxx an amount of $19,583.33 per month, less applicable
deductions for a period of twelve (12) months, and ODI shall provide Xxxxxx with
medical and dental coverage on the same basis as if he were still employed by
ODI, less Xxxxxx'x applicable contribution, for a period of twelve (12) months
following the effective date of termination, provided, however, that if Xxxxxx
becomes re-employed with another employer and is eligible to receive such
insurance coverage under another employer-provided plan, ODI's contribution
toward the insurance coverage set forth herein shall terminate unless Xxxxxx
elects to continue such coverage, at Xxxxxx'x sole expense.
3. ODI agrees that Xxxxxx may retain the personal computer provided to
him during his employment with ODI, provided that Xxxxxx pays ODI $700 for such
computer and further provided that Xxxxxx agrees and acknowledges by his
signature below that (i) all Confidential Information and material belonging to
ODI, including without limitation all software, documentation, records, forms,
customer lists and data, has been removed and deleted from such computer; (ii)
Xxxxxx has ceased any and all utilization of such Confidential Information and
material; and (iii) no copies of such Confidential Information and material have
been made. In addition, ODI agrees to provide Xxxxxx with voice-mail and e-mail
facilities until the effective date of termination.
5. All options which have heretofore been granted to Xxxxxx under ODI's
1996 Stock Incentive and Nonqualified Stock Option Plan, 1995 Nonqualified Stock
Option Plan, 1989 Stock Incentive and Nonqualified Stock Option Plan and/or 1996
Employee Stock Purchase Plan (the "Options") shall be exercisable, and expire,
in accordance with their terms in effect as of the date of this Agreement.
6. Xxxxxx hereby acknowledges and ratifies his obligations under the
NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,
dated November 19, 1998 between Xxxxxx and ODI, a copy of which is attached
hereto and incorporated herein by reference, and Xxxxxx further agrees to be
bound by the terms thereof.
7. Xxxxxx, for good and valuable consideration the receipt of which is
hereby acknowledged, for himself and his legal representatives, successors, and
assigns hereby releases, remises, and forever discharges ODI, its subsidiaries
and affiliates, and their respective past, present and future agents, officers,
directors, shareholders, attorneys, employees, servants, and representatives and
all of ODI's successors, predecessors, and assigns, of and from all manner of
actions, causes of actions, suits, debts, demands, damages, costs, expenses,
attorneys' fees, obligations, agreements, and claims whatsoever, at law, in
equity, or otherwise, known or unknown, which Xxxxxx has or may have, either now
or at any time before the date of this Agreement, against ODI, including but not
limited to any claims arising out of or in any way related to Xxxxxx'x
employment by ODI, Xxxxxx'x resignation as Senior Vice President and General
Manager, ObjectStore Division of ODI, and/or the termination of Xxxxxx'x
employment by ODI; provided, however, that any claims that Xxxxxx may make
against ODI for breach of this Agreement are specifically exempted from this
release. Xxxxxx acknowledges and agrees that the payments and benefits to be
made to Xxxxxx pursuant to this Agreement are over and above any other money or
benefits that would be due to Xxxxxx under the terms of his employment with ODI
and ODI's usual policies and practices.
8. Xxxxxx and ODI hereby agree to be publicly supportive of each other.
Xxxxxx agrees not to criticize, disparage or otherwise comment negatively about,
orally or in writing, directly or indirectly, ODI, its subsidiaries, affiliates
or any of their respective past, present or future officers, directors,
employees, agents, businesses, products or services. Xxxxxx agrees to use his
best efforts to ensure that none of the members of his family so criticize or
disparage any of such persons or entities. Xxxxxx further agrees that he shall
be publicly and privately cooperative and supportive of ODI in regard to its
personnel, corporate practices and policies and other matters. ODI agrees not to
disparage or make negative statements about Xxxxxx and to be publicly and
privately cooperative and supportive of Xxxxxx in regard to his transition.
9. Xxxxxx agrees that, except as may be required by law or as may be
mutually agreed, Xxxxxx will keep the terms and existence of this Agreement
completely and strictly confidential, and that Xxxxxx will not hereafter
disclose any information concerning this Agreement to anyone, except to the
extent necessary to enforce this Agreement.
10. With the exception of the personal computer set forth above, Xxxxxx
agrees to return any and all property, whether tangible or intangible, provided
to Xxxxxx by ODI, as a condition precedent to ODI's obligations hereunder.
11. This Agreement and the NON-COMPETITION, NON-SOLICITATION,
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, attached hereto, embodies the entire
understanding and agreement between the parties, and supersedes all other oral
or written agreements or understandings between the parties regarding the
subject matter hereof, including without limitation any terms and conditions of
any employment agreement or other similar agreement(s), and it shall be binding
and inure to the benefit of the successors and assigns of each. No change,
alteration or modification hereof may be made except in a writing signed by both
parties hereto. This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts (disregarding any choice of law rules which may
look to the laws of any other jurisdiction).
12. The parties represent and acknowledge that in executing this
Agreement they do not rely and have not relied upon any other representation or
statement made by any person or entity with regard to the subject matter, basis,
or effect of this Agreement, with the sole exception of the provisions set forth
herein. Mistakes of fact or law shall not constitute grounds for modification,
avoidance or rescission of the terms and conditions of this Agreement. The fact
that a party or counsel for a party drafted a provision or provisions of this
Agreement shall not cause that provision or those provisions to be construed
against the drafting party.
13. This Agreement may be executed in one or more counterparts, each of
which when so executed shall be deemed an original, but all of which together
shall constitute one and the same instrument.
14. In entering into this Agreement, the parties represent that they
have had the opportunity to seek the advice of legal counsel and that the terms
of the Agreement have been completely read and explained to them and that those
terms are fully understood and voluntarily agreed to.
ODI: Xxxxxx:
Object Design, Inc. Xxxx Xxxxxx
By:_____________________________ By:___________________________
Name:___________________________ Name:_________________________
(Printed or Typed) (Printed or Typed)
Title:__________________________
