May 27, 1999
Exhibit 10.33
Via Hand Delivery
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Xx. Xxxxxx Xxxxxxx
Dear Stuart,
This letter sets forth the substance of our agreement (the "Agreement")
regarding the termination of your employment with CrossWorlds Software, Inc.
(the "Company"). To aid in your employment transition, the Company hereby
offers you the following severance agreement:
1. Separation. Your last day of work at the Company was May 25, 1999, and
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your employment was terminated as of that day ("Separation Date").
2. Accrued Salary and Vacation. Regardless of whether or not you sign the
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Release attached as Exhibit A, the Company will pay you all accrued salary, and
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all accrued and unused vacation up to and including the Separation Date, subject
to standard payroll deductions and withholdings (including without limitation
taxes and social security payments).
3. Exercise of Options. Pursuant to the Company's stock plan, you must
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exercise your vested shares within 30 days of the Separation Date.
4. Payments and Benefits. In addition to the payments in Section 2,
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although the Company has no policy regarding the payment of any severance
benefits, the Company agrees to provide you with the following, provided that
you (i) sign the Release attached as Exhibit A and (ii) deliver the signed
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Release to the Company:
x. Xxxxxxxxx Payment. The Company will pay you four and one-half months'
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base salary, calculated from the Separation Date through October 8,
1999, subject to payroll deductions and withholdings (including
without limitation taxes and social security payments), to the extent
applicable.
b. Health Insurance. If you elect and are eligible for COBRA coverage,
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the Company will pay for your premiums through October 8, 1999 under
federal COBRA law for your medical, dental and vision insurance for
you (and, to the extent you covered any spouse or dependents under
your Company medical, dental and/or vision plans as of the date of
this Agreement, your spouse and/or such dependents). However, if you
become employed full-time prior to the end of such period, the Company
shall have no obligation to pay such premiums. To the extent
permitted by the federal COBRA law and by the Company's current group
health insurance policies, after October 8, 1999 you will be eligible
to continue your health insurance benefits at your own expense and,
later, to convert to an
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individual policy if you wish. You will be provided with a separate
notice of your COBRA rights.
c. Other Compensation or Benefits. You acknowledge that, except as
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expressly provided in this Agreement, you will not receive any
additional compensation, severance or benefits after the Separation
Date.
5. Expense Reimbursements. You hereby agree that, within two (2) weeks
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after the Separation Date, you will have submitted your final documented expense
reimbursement statement reflecting all business expenses you incurred through
the Separation Date, if any, for which you seek reimbursement. The Company will
reimburse you for these expenses pursuant to its regular business practice.
6. Confidentiality. The provisions of this Agreement shall be held in
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strictest confidence by you and the Company and shall not be publicized or
disclosed in any manner whatsoever. Notwithstanding the prohibition in the
preceding sentence: (a) you may disclose this Agreement to your immediate
family; (b) the parties may disclose this Agreement in confidence to their
respective attorneys, accountants, auditors, tax preparers, and other
professional advisors; (c) the Company may disclose this Agreement as necessary
to fulfill standard or legally required corporate reporting or disclosure
requirements; and (d) the parties may disclose this Agreement insofar as such
disclosure may be necessary to enforce its terms or as otherwise required by
law.
You agree that at all times during the term of your employment with the
Company and thereafter to hold in strictest confidence, and not to use except
for the benefit of the Company or disclose to any person, firm or corporation
without written authorization of the Board of Directors of the Company, any
Confidential Information of the Company. "Confidential Information" means any
Company proprietary information, technical data, trade secrets or know-how,
including but not limited to research, product plans, products, services,
customer lists and customers (including but not limited to customers of the
Company on whom you called or with whom you became acquainted during the term of
your employment), markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business information disclosed to you
by the Company either directly or indirectly in writing, orally or by drawings
or observation of parts or equipment.
7. Nondisparagement. Both you and the Company agree not to disparage the
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other in any manner likely to be harmful to the other, the business reputation
of the Company's employees or to the Company's business or reputation, provided
that both you and the Company will respond accurately and fully to any question,
inquiry or request for information when required by legal process.
8. Covenant Not to Xxx and Liquidated Damages. You hereby covenant not
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to xxx or to initiate any other legal or administrative proceedings with regard
to any or all claims released in the Release attached as Exhibit A. Both you
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and the Company agree that it would be impracticable and extremely difficult to
ascertain the amount of actual damages caused by
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breach of the covenant not to xxx provision in this paragraph or the Release
attached as Exhibit A. Therefore, in the event of such a breach, you hereby
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authorize the Company to: cease providing you with all other benefits provided
to you or on your behalf under Section 4 (Payments and Benefits) of this
Agreement, and recover from you all payments and benefits already provided to
you or on your behalf under Section 4 of this Agreement. You further agree that
this liquidated damages provision represents reasonable compensation for the
loss which would be incurred by the Company due to any such breach. You also
agree that nothing in this section is intended to limit the Company's right to
obtain injunctive and other relief as may be appropriate.
9. No Admissions. It is understood and agreed by the parties that this
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Agreement represents a compromise settlement of various matters, and that the
promises and payments in consideration of this Agreement shall no be construed
to be an admission of any liability or obligation by either party to the other
party or to any other person.
10. Release. In exchange for the payments and benefits provided under
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Section 4 hereof and other consideration under this Agreement to which you would
not otherwise be entitled, you agree to execute the Release attached as Exhibit
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A.
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11. General. This Agreement shall bind the heirs, personal
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representatives, successors and assigns of both you and the Company, and inure
to the benefit of both you and the Company, their heirs, successors and assigns.
This Agreement shall be deemed to have been entered into and shall be construed
and enforced in accordance with the laws of the State of California as applied
to contracts made and to be performed entirely within California. This
Agreement constitutes the complete, final and exclusive embodiment of the entire
agreement between you and the Company with regard to this subject matter. It is
entered into without reliance on any promise or representation, written or oral,
other than those expressly contained herein, and it supersedes any other such
promises, warranties or representations. The parties hereby acknowledge that
they have carefully read this Agreement, have been afforded the opportunity to
be advised of its meaning and consequences by their respective attorneys, and
signed the same by their own free will. This Agreement may not be modified or
amended except in a writing signed by both you and a duly authorized officer of
the Company. If any provision of this Agreement is determined to be invalid or
unenforceable, in whole or in part, this determination will not affect any other
provision of this Agreement and the provision in question shall be modified by
the court so as to be rendered enforceable. This Agreement may be
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executed in two counterparts, each of which shall be deemed an original, all of
which together shall constitute one and the same instrument.
12. Consultation and Revocation. The Company hereby advises you to
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discuss this Agreement and the attached Release with an attorney before
executing it. You acknowledge that the Company has provided you with at least
21 days within which to review and consider this Agreement before executing the
Release attached as Exhibit A. Should you decide not to use the full 21 days,
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then you knowingly and voluntarily waive any claim that you were not in fact
given that period of time or did not use the entire 21 days to consult an
attorney and/or consider this Agreement.
You and the Company acknowledge and agree that you may revoke this
Agreement up to 7 calendar days following your execution of the Release attached
as Exhibit A and that it shall not become effective or enforceable until the
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revocation period has expired. You and the Company further acknowledge and agree
that such revocation must be in writing addressed to Xxxx Xxxx, Chief Financial
Officer of the Company at 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
and received by the Company not later than midnight on the 7/th/. day following
your execution of the Release. If you revoke this Agreement under this
paragraph, this Agreement shall not be effective or enforceable and you will not
receive the benefits described in Section 4 above.
If you wish to accept the terms of this Agreement, please sign the attached
Release and return it to me. On behalf of the Company, I wish you the very best
in your future endeavors.
Very truly yours,
/s/ Xxxx Xxxx
Xxxx Xxxx
Chief Financial Officer and Senior Vice President
Attachment: Release
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EXHIBIT A
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RELEASE
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I understand and agree completely to all the terms set forth in the
foregoing letter dated May 27, 1999.
I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads 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." I hereby expressly waive
and relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
Except as otherwise set forth in this Agreement, I hereby release, acquit
and forever discharge the Company, its parents and subsidiaries, and their
officers, directors, agents, servants, employees, shareholders, successors,
assigns and affiliates, of and from any and all claims, liabilities, demands,
causes of action, costs, expenses, attorneys' fees, damages, indemnities and
obligations of every kind and nature, in law, equity or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or
in any way related to agreements, events, acts or conduct at any time prior to
and including the Effective Date of this Agreement, including but not limited
to: all such claims and demands directly or indirectly arising out of or in any
way connected with my employment with the Company or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Company, vacation pay,
fringe benefits, expense reimbursements, severance pay, or any other form of
compensation; claims pursuant to any federal, state or local law or cause of
action including, but not limited to, the federal Civil Rights Act of 1964, as
amended; the federal Americans with Disabilities Act of 1990; the California
Fair Employment and Housing Act, as amended; tort law; contract law; wrongful
discharge; discrimination; fraud; defamation; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
I also acknowledge that the consideration given for the waiver and release
in the preceding paragraph hereof is in addition to anything of value to which I
was already entitled.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Date: 6/3/99
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